DHANPAT versus SHEO RAM (DECEASED) THROUGH LRS. & ORS.
[2020] 7 S.C.R. 131, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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DHANPAT
v.
SHEO RAM (DECEASED) THROUGH LRS. & ORS.
(Civil Appeal No. 1960 of 2020)
MARCH 19, 2020
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Indian Succession Act, 1925:
s. 63 – Will – Admissibility of – Suit seeking declaration that
the plaintiff, his mother and his sisters had equal share in the suit
land which was given to defendant No. 5 by way of a Will – The Will
was challenged as being result of fraud and misrepresentation –
Trial Court as well as first Appellate Court dismissed the suit holding
that plaintiff had no share in the property as partition of the property
had already been done during lifetime of the testator and that the
Will had been duly proved – High Court in second appeal decreed
the suit on the ground that Will was surrounded by suspicious
circumstances and its execution was not proved in accordance with
the requirement of s. 63 of the Act – Appeal to Supreme Court –
Held: The statement of the attesting witness and that of the scribe
of the Will and the official from the Sub-Registrar’s Office prove
the due execution of the Will – Exclusion of natural heirs would not
make the Will surrounded by suspicious circumstances – High Court
erred in law in interfering with the concurrent finding of facts
recorded by Courts below.
Evidence Act, 1872:
ss. 65 and 68 – Secondary evidence – Admissibility of – s. 65
permits secondary evidence where original document has been
destroyed or lost – In the present case execution of the Will was not
disputed, but only proof of the Will was subject matter of dispute –
Once the evidence was brought by the opposite party that original
Will was lost and certified copy thereof was produced, sufficient
ground has been made out for leading of secondary evidence –
There is no requirement for filing application in terms of s. 65(c)
before leading secondary evidence.
[2020] 7 S.C.R. 131
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Punjab Courts Act, 1941:
s. 41 – Second appeal – Scope of – Held: High Court in
terms of s. 41 cannot interfere with finding of fact.
Allowing the appeal, the Court
HELD: 1. Substantial question of law may not be required
to be framed in Punjab and Haryana but still, the finding of fact
recorded cannot be interfered with even in terms of Section 41
of the Punjab Courts Act, 1918. [Para 11][139-A-B]
Pankajakshi (D) through LRs & Ors. v. Chandrika & Ors.
(2016) 6 SCC 157 : [2016] 3 SCR 1018 – followed.
Randhir Kaur v. Prithvi Pal Singh and Others [2019] 9 SCR
776 – relied on.
2.1 Section 65 of the Evidence Act permits secondary
evidence of existence, condition, or contents of a document
including the cases where the original has been destroyed or
lost. If the witness in whose custody the deed should be deposed
to its loss, unless there is some motive suggested for his being
untruthful, his evidence would be accepted as sufficient to let in
secondary evidence of the deed. And if in addition he was not
cross-examined, this result would follow all the more. In the
present case, the Will was in possession of the beneficiary and
was stated to be lost. The Will is dated 30th April, 1980 whereas
the testator died on 15th January, 1982. There is no cross-
examination of any of the witnesses of the defendants in respect
of loss of original Will. The plaintiff had admitted the execution
of the Will though it was alleged to be the
result of fraud and
misrepresentation. The execution of the Will was not disputed
by the plaintiff but only proof of the Will was the subject matter in
the suit. Therefore, once the evidence of the defendants is that
the original Will was lost and the certified copy is produced, the
defendants have made out sufficient ground for leading of
secondary evidence. [Paras 15 and 17][141-A-B, F-H; 142-A]
M. Ehtisham Ali for himself and in place of M. Sakhawat Ali,
since deceased v. Jamna Prasad, since deceased & Ors. AIR
1922 PC 56 – relied on.
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Aher Rama Gova & Ors. v. State of Gujarat (1979) 4
SCC 500 – referred to.
2.2 There is no requirement that an application is required
to be filed in terms of Section 65(c) of the Evidence Act before
the secondary evidence is led. A party to the lis may choose to
file an application which is required to be considered by the trial
court but if any party to the suit has laid foundation of leading of
secondary evidence, either in the plaint or in evidence, the
secondary evidence cannot be ousted for consideration only
because an application for permission to lead secondary evidence
was not filed. [Para 20][143-B-C]
Bipin Shantilal Panchal v. State of Gujarat & Anr. (2001)
3 SCC 1 : [2001] 2 SCR 29; Z. Engineers Construction
Pvt. Ltd. & Anr. v. Bipin Bihari Behera & Ors. (2020)
SCC OnLine SC 184– referred to.
4. The requirement of Section 63 of the Hindu Succession
Act, 1963 and Section 68 of the Evidence Act, 1872 stands
satisfied in the present case. At least one of the attesting witnesses
is required to be examined to prove his attestation and the
attestation by another witness and the testator. In the present
case, DW-3 deposed that the testator had executed his Will in
favour of his four grandsons and he and another person signed as
witnesses. He deposed that the testator also signed it in Tehsil
office. The witnesses to the execution of the Will were also
witnesses before the Sub-Registrar. In the cross-examination,
he stated that he had come to Tehsil
office in connection with
other documents for registration. He deposed that Ex.D-4-the
Will, was typed in his presence. He denied the question that no
Will was executed in his presence. There was no cross-
examination about his not being present before the Sub-Registrar.
Once the Will has been proved, then the contents of such
document are part of evidence. It is a question of fact in each
case as to whether the witness was present at the time of
execution of the Will and whether the testator and the attesting
witnesses have signed in his presence. The statement of the
attesting witness proves the due execution of the Will apart from
the evidence of the scribe and the official from the Sub-Registrar’s
office. [Para 23][144-F-G; 145-A-B]
DHANPAT v. SHEO RAM (DECEASED) THROUGH
LRS. & ORS.
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M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons
& Ors. (1969) 1 SCC 573 : [1969] 3 SCR 513; N.
Kamalam (Dead) & Anr. v. Ayyasamy & Anr. (2001) 7
SCC 503 : [2001] 1 Suppl. SCR 272; Janki Narayan
Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91 :
[2002] 5 Suppl. SCR 175 – distinguished.
H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors.
AIR 1959 SC 443 : [1959] Suppl. SCR 426; Seth Beni
Chand (since dead) now by LRs. v. Smt. Kamla Kunwar
& Ors. (1976) 4 SCC 554 : [1977] 1 SCR 578 –
referred to.
5. The Will cannot be said to be surrounded by suspicious
circumstances, on account of the fact that some of the natural
heirs were not mentioned in the Will. [Para 30][147-G]
Rabindra Nath Mukherjee & Anr. v. Panchanan
Banerjee (Dead) by LRs. & Ors. (1995) 4 SCC 459;
Ved Mitra Verma v. Dharam Deo Verma (2014) 15 SCC
578; Leela Rajagopal & Ors. v. Kamala Menon
Cocharan & Ors. (2014) 15 SCC 570 : [2014] 7 SCR
697 – relied on.
6. The High Court has clearly erred in law in interfering
with the concurrent findings of fact recorded by both the Courts
below. The entire judgment runs on misconception of law and is,
therefore, not sustainable in law. The same is set aside and the
decree of the First Appellate Court is restored. [Para 33][149-E]
Case Law Reference
[2016] 3 SCR 1018
followed
Para 11
[2019] 9 SCR 776
relied on
Para 11
AIR 1922 PC 56
relied on
Para 15
(1979) 4 SCC 500
referred to
Para 16
[2001] 2 SCR 29
referred to
para
18
(2020) SCC OnLine SC 184
referred to
Para 19
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[1959] Suppl. SCR 426
referred to
Para 21
[1977] 1 SCR 578
referred to
Para 22
[1969] 3 SCR 513
distinguished
Para 24
[2001] 1 Suppl. SCR 272
distinguished
Para 26
[2002] 5 Suppl. SCR 175
distinguished
Para 28
(1995) 4 SCC 459
relied on
Para 30
(2014) 15 SCC 578
relied on
Para 31
[2014] 7 SCR 697
relied on
Para 32
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1960
of 2020.
From the Judgment and Order dated 27.03.2014 of the High Court
of Punjab and Haryana at Chandigarh in RSA No. 3131/1987.
Rishi Malhotra, Utkarsh Singh and Mohit Chaudhary, Advs. for
the Appellant.
Manoj Swarup, Sr. Adv., Neelmani Pant, Ms. Vidisha Swarup
and Ajay Kumar, Advs. for the Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order passed by the
High Court of Punjab & Haryana on 27th March, 2014 whereby the
concurrent findings of fact recorded by both the courts below were set
aside and the suit filed by the respondent-plaintiff was decreed.
2. The High Court has framed the following two substantial
questions of law:
“1. Whether the Will dated 30.4.1980 Ex.D-3 was surrounded by
suspicious circumstances and due execution thereof was also not
proved, in accordance with the requirements of Section 63 of the
Succession Act;
2. Whether the learned courts below have completely misread,
misconstrued and misinterpreted the evidence available on record,
particularly the Will Ex.D-3, because of which the impugned
judgments cannot be sustained.”
DHANPAT v. SHEO RAM (DECEASED) THROUGH
LRS. & ORS.
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3. The admitted facts are that one Misri was the grandfather of
the Plaintiff-Sheo Ram and defendant No.5-Sohan Lal and defendant
Nos.7-9 were his granddaughters. Chandu Ram was the father of the
plaintiff and defendant Nos.5, 7-9 and the husband of Chand Kaur had
inherited the suit land from his father, Misri.
4. The plaintiff filed a suit for declaration that he along with his
mother, Chand Kaur and his sisters, defendants Nos. 7-9, were the owners
and in possession of equal shares of the suit land measuring 489 kanals
4 marlas. He asserted that he belonged to the Jat community and was
governed by Punjab Customary Law. Further, that his brother, defendant
No. 5, got a Will dated 30th April, 1980 executed in favour of his sons,
from Chandu Ram. Such a Will contravened Jat Customary Law and
was the result of fraud and misrepresentation. Defendant No.5 and his
sons, the beneficiaries under the Will filed a common written statement
and asserted that the custom had been abrogated after passing of the
Hindu Succession Act, 1956 and that Chandu Ram had separated all his
sons during his life time and given sufficient amount to his daughters,
defendant Nos.7-9, in the shape of dowry and other ceremonial and
customary festivities. In this regard, sufficient land had also been given
to the plaintiff, therefore, there was no Joint Hindu Family. The Will had
been executed by Chandu Ram out of his natural love and affection and
was without any inducement or fraud or misrepresentation.
5. The learned trial court framed as many as 12 issues but for the
purpose of deciding the present appeal, Issue Nos. 1, 3 and 7 are relevant
which read as under:
“1. Whether the plaintiff and the proforma defendants are the
owners and in possession of the property in dispute?
xx
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3. Whether the Will dated 30.4.1980 was validly executed by
Chandu Ram in favour of defendants No. 1 to 4?
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7. Whether deceased Chandu had separated all his sons during
his life time and had given sufficient amount to his daughters in
the shape of dowry etc. and land to his sons as alleged in
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preliminary objection no. 5 of the written statement? If so to what
effect?”
6. In respect of Issue No. 7 relating to the partition of the property
by Chandu Ram, the defendants relied upon a judgment and decree in a
suit filed by the Plaintiff-Sheo Ram and defendant No.5, Sohan Lal against
their father Chandu Ram. Chandu Ram admitted the fact of partition
and that a judgment (Ex.D-21) and decree (Ex.D-22) to this effect was
passed. Thereafter, a mutation was also sanctioned. Chandu Ram had
filed a suit for permanent injunction to the effect that the property in
dispute fell to his share while the defendant (present plaintiff) was given
50 acres of land situated in Village Gawar, 15½ acres of land in Village
Bairan, 10 acres of land in Village Hariawas and 6 acres of land in
Village Baliali, totaling 81½ acres. It was also pleaded that the defendant
therein sold 50 acres of land of Village Gawar and 15½ acres of land of
Village Bairan after this partition. The defendant therein asserted that
the properties mentioned above were purchased by him from his exclusive
funds and, therefore, he has right to sell the same. The certified copy of
judgment and decree are Ex. D-17 and D-18. Therefore, the learned
trial court held that Chandu Ram had separated his sons during his life
time and had settled his daughters as well. Such findings were affirmed
by the learned First Appellate Court.
7. In respect of Issue No. 3, the learned trial court held that the
Will is
duly proved on the basis of statement of DW-3 Maha Singh, an
attesting witness, DW-4 Advocate D.S. Panwar, the scribe, DW-5 Sohan,
the defendant and Krishan Kant, Registration Clerk as DW 2. The Court
noticed that DW-4 D.S. Panwar was Chandu Ram’s advocate in the
cases before the Civil Court who had scribed the Will at his instance and
Maha Singh had put his signatures on the original Will in his presence.
DW-4 D.S. Panwar deposed that the original Will was stated to have
been lost and that he was not sure as to whether Ex. D-3 was the
correct photocopy of the original Will. Chand Kaur, wife of Chandu
Ram was examined as PW-1 who had deposed that Chandu Ram had
ousted her from his house. Therefore, the Court found that it was natural
for Chandu Ram to execute the Will in favour of Defendant No.5, Sohan
Lal’s sons. The Court did not find any merit in the argument that a
deviation from natural succession will make the Will doubtful. It was
also held that the scribe cannot be treated as an attesting witness but
that since two attesting witnesses have signed the Will, the execution of
DHANPAT v. SHEO RAM (DECEASED) THROUGH
LRS. & ORS. [HEMANT GUPTA, J.]
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the Will is proved by examining one of the attesting witnesses. With the
aforesaid findings, the learned trial court dismissed the suit filed by the
plaintiff.
8. The learned First Appellate Court affirmed the findings recorded
by the trial court and dismissed the suit filed by the plaintiff vide judgment
and decree dated 11th May, 1987. It was held that the Will had been
executed by Chandu Ram in favour of the defendant Nos. 1 to 4, i.e. the
sons of Defendant No.5, Sohan Lal and was not surrounded by suspicious
circumstances.
9. In second appeal, the learned High Court allowed the appeal
filed by the plaintiff holding that the Will dated 30th April, 1980 was
surrounded by suspicious circumstances. The substantial question of law
framed by the High Court was only to this effect. It was argued by the
defendants that the finding that the Will stands executed and was not
surrounded by suspicious circumstances and has been illegally interfered
by the High Court.
10. The High Court had held that only Maha Singh was examined
as attesting witness as DW-3 whereas the second attesting witness Azad
Singh was not produced, therefore, the Will was not proved. It also held
that the Will had been completely misread, misconstrued and
misinterpreted. The High Court found that in the Will, there was no
mention of Chandu Ram’s wife and the other son i.e. the Plaintiff, and
therefore, such fact was a suspicious circumstance to doubt the
genuineness of the Will. The High Court referred to the judgment of the
trial court dated 7th December, 1981 filed by Chandu Ram to prove that
the house and agricultural land were ancestral property though no
substantial question of law on the said aspect relating to the nature of
land was framed. In fact, the judgment dated 7th December 1981 (Ex-
D-17) in the suit filed by Chandu Ram, has been produced by the
respondent with the present appeal. A perusal of the judgment shows
that Chandu Ram had asserted partition of the property about 8-10 years
back. The Plaintiff-Sheo Ram had asserted that he is in joint possession
of the property. In the said suit, a decree for permanent injunction was
passed restraining the defendant from interfering with the disputed
property after returning a finding on Issue No. 5 that a family partition
had taken place and that the property cannot be said to be joint property
of the parties. The High Court has not referred to the findings recorded
in the suit filed by the Plaintiff-Sheo Ram.
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11. It may be noticed that in view of Constitution Bench judgment
of this Court in Pankajakshi (D) through LRs & Ors. v. Chandrika
& Ors.2, substantial question of law may not be required to be framed in
Punjab and Haryana but still, the finding of fact recorded cannot be
interfered with even in terms of Section 41 of the Punjab Courts Act,
1918. The said question was examined by this Court in Randhir Kaur
v. Prithvi Pal Singh and Others3, wherein, the scope for interference
in the second appeal under Section 41 of the Punjab Courts Act applicable
in the States of Punjab and Haryana was delineated and held as under:
“16. A perusal of the aforesaid judgments would show that the
jurisdiction in second appeal is not to interfere with the findings of
fact on the ground that findings are erroneous, however, gross or
inexcusable the error may seem to be. The findings of fact will
also include the findings on the basis of documentary evidence.
The jurisdiction to interfere in the second appeal is only where
there is an error in law or procedure and not merely an error on a
question of fact.
17. In view of the above, we find that the High Court could not
interfere with the findings of fact recorded after appreciation of
evidence merely because the High Court thought that another
view would be a better view. The learned first appellate court has
considered the absence of clause in the first power of attorney to
purchase land on behalf of the Plaintiff; the fact
that the plaintiff
has not appeared as witness.”
12. In support of the findings recorded by the High Court,
Mr. Manoj Swarup, learned senior counsel for the plaintiff-respondent
argued that in terms of Section 63 of the Indian Succession Act, 1925
(for short the ‘Act’) a Will is required to be attested by two witnesses
who have seen the testator and in which the testator and two of the
attesting witnesses sign in presence of each other. It is argued that Maha
Singh, DW-3 had not deposed that all three were present at the same
time, therefore, the finding of the High Court has to be read in that
context, when the Will was found to be surrounded by suspicious
circumstances as the second attesting witness was not examined. It is
also argued that the original Will has not been produced and no application
for leading secondary evidence was filed. Therefore, the secondary
evidence could not be led by the defendant to prove the execution of the
Will.
2 (2016) 6 SCC 157
3 Civil Appeal No. 5822 of 2019 decided on 24th July, 2019
DHANPAT v. SHEO RAM (DECEASED) THROUGH
LRS. & ORS. [HEMANT GUPTA, J.]
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13. Section 65(c) of the Indian Evidence Act, 18724 is applicable
in the facts of the present case as the defendants asserted that the
original Will is lost. The Section 65 reads as under:
“65.  Cases in which secondary evidence relating to documents
may be given. – Secondary evidence may be given of the existence,
condition, or contents of a document in the following cases:-
(a) xx
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(b) xx
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(c) when the original has been destroyed or lost, or when the
party offering evidence of its contents cannot, for any other
reason not arising from his own default or neglect, produce it
in reasonable time;
(d) xx
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(e) xx
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(f) xx
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(g) xx
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In cases (a), (c) and (d), any secondary evidence of the contents
of the document is admissible.
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14. The defendants produced a certified copy of the Will obtained
from the office of the Sub-Registrar. The defendants also produced the
photocopy of the Will scribed by DW 4- D.S. Panwar.
15. In a judgment reported as M. Ehtisham Ali for himself and
in place of M. Sakhawat Ali, since deceased v. Jamna Prasad, since
deceased & Ors.5, the appellants-plaintiffs filed a suit on the basis of a
sale deed. During trial, the stand of the plaintiffs was that the original
sale deed was lost but since it was registered, secondary evidence by
way of a certified copy prepared by the office of the Registrar was
produced. It was not disputed that the copy produced was not the
correct
copy of the registered document. The suit was dismissed for the reason
that the plaintiffs have not succeeded in satisfactorily establishing the
loss of the original sale deed. The Court held as under:
4 for short, ‘Evidence Act’
5 AIR 1922 PC 56
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“It is, no doubt, not very likely that such a deed would be lost, but
in ordinary cases, if the witness in whose custody the deed should
be deposed to its loss, unless there is some motive suggested for
his being untruthful, his evidence would be accepted as sufficient
to let in secondary evidence of the deed. And if in addition he was
not cross-examined, this result would follow all the more. There
is no doubt that the deed was executed, for it was registered, and
registered in a regular way, and it is the duty of the registrar,
before registering, to examine the grantor, or some one whom he
is satisfied is the proper representative of the grantor, before he
allows the deed to be registered.”
16. In another judgment reported as Aher Rama Gova & Ors. v.
State of Gujarat6, the secondary evidence of dying declaration recorded
by a Magistrate was produced in evidence. This Court found that though
the original dying declaration was not produced but from the evidence, it
is clear that the original was lost and was not available. The Magistrate
himself deposed on oath that he had given the original dying declaration
to the Head Constable whereas the Head Constable deposed that he
had made a copy of the same and given it back to the Magistrate.
Therefore, the Court found that the original dying declaration was not
available and the prosecution was entitled to give secondary evidence
which consisted of the statement of the Magistrate as also of the Head
Constable
who had made a copy from the original. Thus, the secondary
evidence of dying declaration was admitted in evidence, though no
application to lead secondary evidence was filed.
17. Even though, the aforesaid judgment in para 15 is in respect
of the loss of a sale deed, the said principle would be applicable in respect
of a Will as well, subject to the proof of the Will in terms of Section 68 of
the Evidence Act. In the present case as well, the Will was in possession
of the beneficiary and was stated to be lost. The Will is dated 30th April,
1980 whereas the testator died on 15th January, 1982. There is no cross-
examination of any of the witnesses of the defendants in respect of loss
of original Will. Section 65 of the Evidence Act permits secondary
evidence of existence, condition, or contents of a document including
the cases where the original has been destroyed or lost. The plaintiff
had admitted the execution of the Will though it was alleged to be the
result of fraud and misrepresentation. The execution of the Will was not
6 (1979) 4 SCC 500
DHANPAT v. SHEO RAM (DECEASED) THROUGH
LRS. & ORS. [HEMANT GUPTA, J.]
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disputed by the plaintiff but only proof of the Will was the subject matter
in the suit. Therefore, once the evidence of the defendants is that the
original Will was lost and the certified copy is produced, the defendants
have made out sufficient ground for leading of secondary evidence.
18. This Court in Bipin Shantilal Panchal v. State of Gujarat &
Anr.7, deprecated the practice in respect of the admissibility of any
material evidence, where the Court does not proceed further without
passing order on such objection. It was held that all objections raised
shall be decided by the Court at the final stage. The Court held as under:
“14. When so recast, the practice which can be a better substitute
is this: Whenever an objection is raised during evidence-taking
stage regarding the admissibility of any material or item of oral
evidence the trial court can make a note of such objection and
mark the objected document tentatively as an exhibit in the case
(or record the objected part of the oral evidence) subject to such
objections to be decided at the last stage in the final judgment. If
the court finds at the final stage that the objection so raised is
sustainable the Judge or Magistrate can keep such evidence
excluded from consideration. In our view there is no illegality in
adopting such a course. (However, we make it clear that if the
objection relates to deficiency of stamp duty of a document the
court has to decide
the objection before proceeding further. For
all other objections the procedure suggested above can be
followed).
15. The above procedure, if followed, will have two advantages.
First is that the time in the trial court, during evidence-taking stage, would
not be wasted on account of raising such objections and the court can
continue to examine the witnesses. The witnesses need not wait for
long hours, if not days. Second is that the superior court, when the same
objection is recanvassed and reconsidered in appeal or revision against
the final judgment of the trial court, can determine the correctness of the
view taken by the trial court regarding that objection, without bothering
to remit the case to the trial court again for fresh disposal. We may also
point out that this measure would not cause any prejudice to the parties
to the litigation and would not add to their misery or expenses.”
7 (2001) 3 SCC 1
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19. This Court in Z. Engineers Construction Pvt. Ltd. & Anr. v.
Bipin Bihari Behera & Ors.8, held that even in respect of deficiency
of stamp duty in the State of Orissa where a question arose as to whether
possession had been delivered in pursuance of a registered power of
attorney, the same was a question of fact which was required to be
decided after the evidence was led.
20. There is no requirement that an application is required to be
filed in terms of Section 65(c) of the Evidence Act before the secondary
evidence is led. A party to the lis may choose to file an application which
is required to be considered by the trial court but if any party to the suit
has laid foundation of leading of secondary evidence, either in the plaint
or in evidence, the secondary evidence cannot be ousted for consideration
only because an application for permission to lead secondary evidence
was not filed.
21. Now, coming to the question as to whether the defendants
have proved the due execution of the Will, reference will be made to a
judgment reported as H. Venkatachala Iyengar v. B.N.
Thimmajamma & Ors.9. This Court while considering Section 63 of
the Act and Section 68 of the Evidence Act laid down the test as to
whether the testator signed the Will and whether he understood the nature
and effect of the dispositions in the Will.  The Court held as under:
“18. …Thus the question as to whether the will set up by the
propounder is proved to be the last will of the
testator has to be
decided in the light of these provisions. Has the testator signed
the will? Did he understand the nature and effect of the dispositions
in the will? Did he put his signature to the will knowing what it
contained? Stated broadly it is the decision of these questions
which determines the nature of the finding on the question of the
proof of wills. It would prima facie be true to say that the will has
to be proved like any other document except as to the special
requirements of attestation prescribed by Section 63 of the Indian
Succession Act. As in the case of proof of other documents so in
the case of proof of wills it would be idle to expect proof with
mathematical certainty. The test to be applied would be the usual
test of the satisfaction of the prudent mind in such matters.”
8 2020 SCC OnLine SC 184
9 AIR 1959 SC 443
DHANPAT v. SHEO RAM (DECEASED) THROUGH
LRS. & ORS. [HEMANT GUPTA, J.]
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22. This Court in a judgment reported as Seth Beni Chand (since
dead) now by LRs. v. Smt. Kamla Kunwar & Ors.10 held that onus
probandi lies in every case upon the party propounding a Will, and he
must satisfy the conscience of the court that the instrument so propounded
is the last will of a free and capable testator. The Court held as under:
“9. The question which now arises for consideration, on which
the Letters Patent Court differed from the learned Single Judge
of the High Court, is whether the execution of the will by Jaggo
Bai is proved satisfactorily. It is well-settled that the onus probandi
lies in every case upon the party propounding a will, and he must
satisfy the conscience of the court that the instrument so
propounded is the last will of a free and capable testator. [See
Jarman on Wills (8th Edn., p. 50) and H. Venkatachala Iyengar
v. B.N. Thimmajamma, AIR 1959 SC 443 : 1959 Supp (1) SCR
426] By “free and capable testator” is generally meant that the
testator at the time when he made the will had a sound and disposing
state of mind and memory. Ordinarily, the burden of proving the
due execution of the will is discharged if the propounder leads
evidence to show that the will bears the signature or mark of the
testator and that the will is duly attested. For proving attestation,
the best evidence would naturally be of an attesting witness and
indeed the will cannot be used as evidence unless at least
one
attesting witness, depending on availability, has been called for
proving its execution as required by Section 68 of the Evidence
Act….”
23. In view of the aforesaid judgments, at least one of the attesting
witnesses is required to be examined to prove his attestation and the
attestation by another witness and the testator. In the present case,
DW-3 Maha Singh deposed that Chandu Ram had executed his Will in
favour of his four grandsons and he and Azad Singh signed as witnesses.
He deposed that the testator also signed it in Tehsil office. He and Azad
Singh were also witnesses before the Sub-Registrar. In the cross-
examination, he stated that he had come to Tehsil office in connection
with other documents for registration. He deposed that Ex.D-4-the Will,
was typed in his presence. He denied the question that no Will was
executed in his presence. There was no cross-examination about his not
being present before the Sub-Registrar. Once the Will has been proved
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then the contents of such document are part of evidence. Thus, the
requirement of Section 63 of the Act and Section 68 of the Evidence Act
stands satisfied. The witness is not supposed to repeat in a parrot like
manner the language of Section 68 of the Evidence Act. It is a question
of fact in each case as to whether the witness was present at the time of
execution of the Will and whether the testator and the attesting witnesses
have signed in his presence. The statement of the attesting witness proves
the due execution of the Will apart from the evidence of the scribe and
the official from the Sub-Registrar’s office.
24. Mr. Swarup referred to judgment of this Court reported as
M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons & Ors.11.
The primary issue discussed therein was a summary suit for recovery
wherein an application for leave to defend was granted on the condition
of furnishing a security for a sum of Rs.50,000/-.  The question examined
was whether the security bond is attested by the two witnesses and, if
not, whether it was invalid. While considering the attestation, this Court
discussed the question of attestation of witnesses as well and held as
under:
“8. “In every case the Court must be satisfied that the names
were written animo attestandi”, see Jarman on Wills, 8th Edn.,
p. 137. Evidence is admissible to show whether the witness had
the intention to attest. “The attesting witnesses must subscribe
with the intention that the
subscription made should be complete
attestation of the will, and evidence is admissible to show whether
such was the intention or not,” see Theobald on Wills, 12th Edn.,
p. 129. In Girja Datt v. Gangotri [AIR 1955 SC 346, 351] , the
Court held that the two persons who had identified the testator at
the time of the registration of the will and had appended their
signatures at the foot of the endorsement by the sub-Registrar,
were not attesting witnesses as their signatures were not put
“animo attestandi”. In Abinash Chandra Bidvanidhi
Bhattacharya v. Dasarath Malo [ILR 56 Cal 598] it was held
that a person who had put his name under the word “scribe” was
not an attesting witness as he had put his signature only for the
purpose of authenticating that he was a “scribe”. In Shiam Sunder
Singh v. Jagannath Singh [54 MLJ 43], the Privy Council held
that the legatees who had put their signatures on the will in token
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of their consent to its execution were not attesting witnesses and
were not disqualified from taking as legatees.”
25. In the aforesaid case, it had been held that the person who put
his name under the word “scribe” was not an attesting witness, further
that the legatees who had put their signatures on the Will were not attesting
witnesses. In the present case, Maha Singh and Azad Singh have signed
the Will as attesting witnesses not only at the time of execution but also
at the time of registration before the Sub-Registrar. Therefore, the said
judgment is not helpful to the argument raised.
26. Mr. Swarup relied on judgment reported as N. Kamalam
(Dead) & Anr. v. Ayyasamy & Anr.12 that in the absence of Maha
Singh deposing that he is the attesting witness along with Azad Singh, his
statement cannot be treated to be that of attesting witness. We do not
find any merit in the said argument. In the aforesaid case, it was the
scribe who was said to be the attesting witness. This Court held as
under:
“27.  …The animus to attest, thus, is not available, so far as the
scribe is concerned: he is not a witness to the will but a mere
writer of the will. The statutory requirement as noticed above
cannot thus be transposed in favour of the writer, rather goes
against the propounder since both the witnesses are named therein
with detailed address and no attempt has been made to bring them
or to produce them before the court so as
to satisfy the judicial
conscience. Presence of scribe and his signature appearing on
the document does not by itself be taken to be the proof of due
attestation unless the situation is so expressed in the document
itself — this is again, however, not the situation existing presently
in the matter under consideration. Some grievance was made
before this Court that sufficient opportunity was not being made
available, we are however, unable to record our concurrence
therewith. No attempt whatsoever has been made to bring the
attesting witnesses who are obviously available.”
27. The said judgment has no applicability inasmuch as Maha
Singh is the attesting witness and has been examined as such by the
defendant.
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28. Mr. Swarup further relied upon a judgment of this Court
reported as Janki Narayan Bhoir v. Narayan Namdeo Kadam13 to
contend that if one attesting witness is examined, he has to depose about
the presence of the second attesting witness by relying upon the following
findings:
“10.  …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 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.”
29. We do not find any merit in the said argument as well.  The
statement of Maha Singh
produced on record shows that he along with
Azad Singh, the other attesting witness and the testator had signed the
Will. In the cross-examination, the statement that he has signed the Will
had not been disputed nor that the testator or the other attesting witness
was not present at that time. Therefore, the ratio of the aforesaid judgment
is not applicable to the facts of the present case. In fact, it is finding of
fact, recorded by the First Appellate Court.
30. In respect of an argument that some of the natural heirs were
not even mentioned in the Will, therefore, the Will is surrounded by
suspicious circumstances is again not tenable. Mr. Rishi Malhotra, learned
counsel for the appellant referred to the judgment of this Court reported
as Rabindra Nath Mukherjee & Anr. v. Panchanan Banerjee (Dead)
by LRs. & Ors.14 wherein it had been held that the Will was executed
13 (2003) 2 SCC 91
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for the exclusion of the natural heirs. The suspicious circumstances found
by the High Court to deprive the natural heirs by the testatrix was not
found to be sufficient. The Court held as under:
“4.  As to the first circumstance, we would observe that this should
not raise any suspicion, because the whole idea behind execution
of will is to interfere with the normal line of succession. So natural
heirs would be debarred in every case of will; of course, it may be
that in some cases they are fully debarred and in others only
partially. As in the present case, the two executors are sons of a
half-blood brother of Saroj Bala, whereas the objectors
descendants of a full blood sister, the disinheritance of latter could
not have been taken as a suspicious circumstance, when some of
her descendants are even beneficiaries under the will.”
31. Mr. Malhotra referred to another judgment of this Court
reported as Ved Mitra Verma v. Dharam Deo Verma15 wherein this
Court held that the exclusion of the children of the testator and execution
of the Will for the sole benefit of one of the sons by the testator, is not a
suspicious circumstance. This Court held as under:
“8. The exclusion of the other children of the testator and the
execution of the will for the sole benefit of one of the sons i.e. the
respondent, by itself, is not a suspicious circumstance. The property
being self-acquired, it is the will of the testator that has to
prevail.”
32. Mr. Malhotra also referred to the judgment of this Court
reported as Leela Rajagopal & Ors. v. Kamala Menon Cocharan &
Ors.16 wherein it was held that it is the overall assessment of the Court
on the basis of the unusual features appearing in the Will or the unnatural
circumstances surrounding its execution, that justifies a close scrutiny of
the same before it can be accepted. Herein, the cumulative effect of the
unusual features and circumstances surrounding the Will, would weigh
upon the court in the determination required to be made by it. The judicial
verdict will be based on the consideration of all the unusual features and
suspicious circumstances put together and not upon the impact of any
single feature that may be found in a Will or a singular circumstance that
may appear from the process leading to its execution. The Court held as
under:
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16 (2014) 15 SCC 570
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“13. A will may have certain features and may have been
executed in certain circumstances which may appear to be
somewhat unnatural. Such unusual features appearing in a will
or the unnatural circumstances surrounding its execution will
definitely justify a close scrutiny before the same can be
accepted. It is the overall assessment of the court on the basis
of such scrutiny; the cumulative effect of the unusual features
and circumstances which would weigh with the court in the
determination required to be made by it. The judicial verdict, in
the last resort, will be on the basis of a consideration of all the
unusual features and suspicious circumstances put together
and not on the impact of any single feature that may be found
in a will or a singular circumstance that may appear from the
process leading to its execution or registration. This, is the
essence of the repeated pronouncements made by this Court
on the subject including the decisions referred to and relied
upon before us.
14. In the present case, a close reading of the will indicates its
clear language, and its unambiguous purport and effect. The
mind of the testator is clearly discernible and the reasons for
exclusion of the sons is apparent from the will itself…”
33. In view of the above, we find that the High Court has clearly
erred in law in interfering with the concurrent findings of fact recorded
by both the Courts below. The entire judgment runs on misconception of
law and is,
therefore, not sustainable in law. The same is set aside and
the decree of the First Appellate Court is restored. Accordingly, the
appeal is allowed and the suit is dismissed.
Kalpana K. Tripathy
Appeal allowed.
DHANPAT v. SHEO RAM (DECEASED) THROUGH
LRS. & ORS. [HEMANT GUPTA, J.]