ORDER Dr. M.K. Sharma, J.
1. This appeal is directed against the judgment/order passed by the Additional District Judge on 16.11.1996 dismissing the petition filed by the appellant and Smt. Ajit Kaur Bedi praying for grant of probate/letters of administration in respect of the estate left behind by the deceased S. Sant Singh Bedi on the basis of his registered WILL dated 29. 7. 1975. During the pendency of the aforesaid proceedings Smt. Ajit Kaur died on 26. 6.1990 and in view of the aforesaid eventuality an application was filed by the appellant under Order 32 Rule 12 the Code of Civil Procedure for permission that he be allowed to continue the proceedings in his own name because of his attaining majority during the pendency of the proceedings and also on account of the fact that Smt. Ajit Kaur died leaving behind the appellant as her sole surviving heir and legal representative. The said application was allowed and therefore, the present appeal has been preferred by the appellant alone being aggrieved by the aforesaid judgment/order passed by the Additional District Judge.
2. S. Sant Singh was married in the year 1937 to Smt. Satwant Kaur and they had a son born out of the wedlock. The said son however, died subsequently but after alleged execution of the WILL on 29. 7. 1975. It is alleged by the appellant herein that in the year 1956 the deceased married Smt. Ajit Kaur Bedi but they had no issue and accordingly the appellant herein was adopted by the couple. The deceased, at the time of his death left behind an estate comprising of a house bearing No. M-35, Kirti Nagar, New Delhi, 2 Fixed Deposits Receipts of Rs. 20, 000/-and Rs. 15,000/-respectively and half share in an industrial plot of 3000 Sq. yards. at Rajkot in Gujarat. It is also alleged that the deceased executed a WILL by which he bequeathed his entire movable and immovable properties by creating a fire interest in respect or the same in favour of Smt. Ajit Kaur Bedi and after her death in favour of the appellant absolutely. It is however, to be stated herein that the marriage of the testator with Smt. Satwant Kaur was not formally dissolved till the date of his death. Basing the claim on the WILL the petition for grant of Probate/Letters of Administration was filed by the appellant and Smt. Ajit Kaur Bedi.
3. The aforesaid WILL of the testator was however, challenged by his first wife and the son Balwinder Singh who filed their objections against the same in the probate proceedings. The validity and genuineness of the aforesaid WILL was challenged on the ground that the said WILL is forged and fabricated document and does not bear the signatures of the testator. It was also alleged by them that the testator was not in sound disposing mind at the time of execution of the alleged WILL. It is also stated that no reason has been given in the WILL for disinheriting the legal heirs and close relatives.
4. On the basis of the pleadings of the parties 5 issues were framed in the aforesaid proceedings. The parties led their evidence both oral and documentary and thereafter by the judgment/order dated 16. 11. 1996 the petition was dismissed. The trail court while dismissing the petition filed under Section 276 of the Indian Succession Act held that the validity and the genuineness of the WILL is not proved. It was also held that the WILL in question was executed under suspicious circumstances. It was also held that neither the signature of the testator was legally proved in accordance with provisions of the Indian Evidence Act nor any attesting witness was examined and accordingly, he held that the appellant not only failed to prove the due execution of the WILL as required under Section 68 of the Evidence Act but he also failed to remove the suspicion surrounding the WILL.
5. Learned counsel appearing for the appellant submitted that the conclusions and findings arrived at by the Additional District Judge are erroneous in view of the fact that the aforesaid WILL was duly executed by the testator in presence of two independent persons whose signatures appear on the said WILL and that the said WILL was a registered document. Under the aforesaid circumstances, he submitted, that the Additional District Judge could not have held and was not justified in holding that the WILL was executed under suspicious circumstances. He further submitted that out of the two attesting witnesses to the WILL, it has been proved by the appellant that one of them namely-Shri Sohan Lal Khera, who was an Advocate's clerk died before he could be examined in the trial and so far the other attesting witness is concerned his whereabouts were not known to the appellant and therefore, no objection could be taken for non-examination of the attesting witnesses. He also submitted that no objection could be raised by the respondent to the genuineness and the validity of the WILL since they have already accepted an amount of Rs. 1,80,000/- just after the death of the testator in order to settle the dispute with regard to the estate left by the deceased and a receipt Ex. OW4/ dated 26.11.1981 and other related documents were handed over to the appellant and therefore the objection raised by the objectors/respondents is barred by the principles of waiver and estoppel.
6. Learned counsel appearing for the respondent however, refuted the aforesaid allegations and submitted that the Additional District Judge after careful consideration of the record came to a well reasoned conclusion that there was failure on the part of the propounder of the WILL to prove Its genuineness and validity and that the WILL was executed under suspicious circumstances. He further submitted that even the signature of the testator on the WILL was not proved in accordance with law and therefore, no Probate/Letters of Administration could have been granted by the court on the basis of such type of a WILL.
7. In the light of the aforesaid submissions I have carefully perused the record. The aforesaid WILL has been marked as 'X. The said WILL was allegedly executed by the testator on 29.7.1975. It is an admitted position of parties that the testator died on 29.5.1981 as his death certificate has been placed on the record. The question, therefore, that arises for my consideration is whether the aforesaid WILL was valid and genuine and whether the testator was possessed of sound disposing mind on the date of execution of the WILL. It is also to be probed as to whether the said WILL has been duly and legally proved in the case so as to grant relief as sought for by the appellant herein. The trial court on appreciation of the evidence on record found that the testator was possessed of sound disposing mind on the date when he executed the WILL in question. There is no challenge to the aforesaid finding in the present appeal by the respondent by filing cross-objections and therefore, the said finding cannot be upset.
8. The next question to be considered is whether the WILL propounded by the appellant was valid and the genuine and whether the same was duly and validly executed and attested. The aforesaid issue was answered against the appellant and in favour of the respondent by the trial court. On consideration of the evidence on record, the trial court found that the signature of the testator was not validly proved by the appellant. Evidence was sought to be led on behalf of the appellant mainly through the deposition of PW4-Shri Arun Sood, who sought to prove the signature of the deceased testator on the Specimen Signature Card Ex.PW4/1 relating to Savings Bank Account no. 3577 held by the deceased. The Objector appearing as OW-4 was confronted with the signatures of the deceased testator appearing on his passport proved as Ex.OW4/P.1. The OW-4 replied that she could not identify the signatures of the testator on his passport because she was illiterate. In his deposition the appellant has failed to prove the signature of the testator on his Passport nor the appellant produced any expert evidence regarding the signature of the testator on the WILL marked 'X'. The buzden of proving the document/WILL is on the propounder. No convincing evidence has been led on behalf of the appellant to prove and establish that the signature appearing under the name of the testator is that of the deceased. Besides, although there were two attesting witnesses to the WILL, none of the said attesting witnesses has been examined in the probate proceedings. Evidence is of course led on behalf of the appellant that one of the attesting witnesses namely-Shri Sohan Lal Khera, who was an advocate's clerk died before recording of his evidence. Nothing however, is stated nor any evidence has been led on behalf of the appellant as to why the other attesting witness namely-Shri J.R. Bhatia, who is a local Lawyer could not be produced as a witness in the proceedings. It is true that PW5 namely-one Mr. J.G. Nanda was examined by the appellant. It is stated by Mr. Nanda that he was working as Sub-Registrar on 17.9.1975 at Kashmere Gate, Delhi and that the will marked 'X' was presented for registration before him by the testator S. Sant Singh Bedi. He also deposed that the WILL was signed by the testator in his presence and that the WILL was initialled by him at its back. He also proved that the WILL was registered in the office of the Sub-Registrar at Kashmere Gate, Delhi. He however, admitted during his cross-examination that he neither knew the deceased testator nor any of the attesting witnesses of the WILL and he never saw either the eceased or the attesting witnesses signing and writing except when the WILL marked 'X' was presented for registration. He also could not definitely say that the person who appeared before him was the actual person or someone else appeared impersonating the deceased.
9. The testator S. Sant Singh Bedi died on 29.5.1981 and the present petition for Probate/Letters of Administration was filed on 11.8.1981. The petition has not been verified by any of the attesting witnesses. Section 68 of the Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least his 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. The proviso appended thereto however, is very material and relevant, for it provides that it shall not b e 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, unless its execution by the person by whom it purports to have been executed is specifically denied. The aforesaid proviso is therefore, not applicable for the purpose of proving the execution of any document when it is a WILL. The appellant has not examined even one attesting witness of the WILL as required under Section 68 of the Indian Evidence Act. It is however, brought in evidence that one of the attesting witnesses namely-Shri Sohan Lal Khera died before his evidence could be recorded and his son was examined to prove the signature of his father on the WILL. However, no evidence has been led on record explaining why the other attesting witness namely-J.R. Bhatia, Advocate could not be examined as a witness. During the course of arguments a stand was taken by the counsel appearing for the appellant that the whereabouts of Shri J.R. Bhatia were not known. However, in the midst of the arguments an application (being C.M. 5498/1999) was filed by the appellant contending inter alia that the appellant was unaware of the whereabouts of Shri J.R. Bhatia and it was only on repeated persuation, follow-up and after exercise of due diligence that the appellant was able to trace out the whereabouts of Shri J.R. Bhatia from one of his relatives namely-Shri Malik Ram Bhatia that the said Shri J.R.Bhatia died on or about 9.11.1980. In the light of the aforesaid statement it was prayed that the appellant should be allowed to file his affidavit by way of additional evidence regarding date of death of Shri J.R. Bhatia.
10. In my considered opinion the statement made in the said application is vague, for the date of death of Shri J.R. Bhatia has not been specifically stated in the said application, although it is stated that the information has been derived from one of the relatives. It further transpires that the alleged death took place in month of November,1980. It is apparent that no enquiry was made by the appellant about the whereabouts of Shri J.R. Bhatia at the time of trial of the proceedings. No evidence was led as to why he could not be examined at that point of time or about the whereabouts of Shri J.R. Bhatia, at that stage of enquiry. The information that has been sought to be placed on record now, could have been placed on record, if the appellant was diligent and vigilant. Negligence is apparent on the face of the record and the appellant cannot be allowed to fill up the lacunae at this distant date particularly in absence of specific information about the death of Shri J.R. Bhatia. The aforesaid application (C.M. 5498/1999) is therefore,rejected as-having no merit.
11. In this connection reference may be made to the decision of the Supreme Court in Girja Datt Singh Vs. Gangotri Datt Singh, reported in AIR 1953 SC 346 wherein it was held by the Supreme Court that it cannot be presumed from the mere signature of two persons appearing at the foot of the endorsement of registration of a WILL that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses, for Section 68 of the Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the WILL. It was also laid down in the said decision that in order to prove the due attestation of the WILL the propounder of the WILL has to prove that 'A' & 'B', the two witnesses saw the testator sign the WILL and they themselves signed the same in the presence of the testator.
12. In Karri Nooka raju Vs. Pultra Venkatarao and Others, , it was held that it is clear from Section 68 of the Evidence Act read with Section 63(c) of Succession Act that it is sufficient even if one attestor is examined. But that attestor should speak not only about the testator's signature or affixing his mark to the WILL or somebody else signing it in his presence and by his direction or that he has attested the WILL after taking acknowledgment from the testator of the signature or mark, but he must also speak that each of the witnesses had signed the WILL in the presence of the testator. It was also held in the said decision that if there are any suspicious circumstances it is part of the onus of the propounder to remove those suspicions and that registration of a WILL though not required under law is only a piece of evidence of the execution and that such registration cannot take the place of due attestation of a document. While laying down the aforesaid law the Andhra Pradesh High Court relied upon the decision of the Supreme Court in H. Venkatachala lyengar Vs. B.N. Thimma-jamma, .
13. The result, therefore, is that the alleged WILL dated 29.7.1975 is not proved to have been duly executed and attested and cannot furnish a basis of title to the plaintiff in the properties left behind by the deceased. The reasons given by the trial court for dismissing the petition seeking for Probate/Letters of Administration are found to be well founded and well reasoned. I find no infirmity in the said judgment/order. The appeal has no merit and is dismissed but without any costs.