Atma Ram vs State Of U.P. And Others
2012 Latest Caselaw 5591 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. 6
 

 
Civil Misc. Writ Petition No. 57325 of 2012
 

 
Atma Ram				-------				Petitioner
 
					Versus
 
State of U.P. & Ors.		-------				Respondents
 

 
Hon'ble Krishna Murari, J.

Heard Shri Manish Chandra Tiwari, learned counsel for the petitioner and Shri Vatsal Srivastava appearing for respondent no. 6.

Facts, in brief, giving rise to the present dispute are as under.

Respondent no. 6 herein filed a suit under Section 229 B of the U.P. Zamindari Abolition & Land Reforms Act seeking declaration of her rights in the land in dispute on the basis of a Will said to have been executed by her father, late Lakhi Ram, who was the recorded tenure holder. Suit was contested by the predecessor-in-interest of the petitioner by filing written statement denying the plaint allegation and alleging that Will was forged and fabricated. He claimed rights under Section 171 of the U.P. Zamindari Abolition & Land Reforms Act, being the brother of the deceased recorded tenure holder Lakhi Ram. Trial court vide judgment and decree dated 31.05.2006 dismissed the suit. Appeal filed by the respondent no. 6 was allowed and second appeal filed by the petitioner was dismissed by the Board of Revenue.

Trial court finding that plaintiff has failed to prove the Will in accordance with the provisions of Section 68 of the Evidence Act as well as Section 63 of the Indian Succession Act, inasmuch as one of the attesting witness, namely, Sattu produced by her to prove the attestation of the Will, did not depose in his statement that testator has signed the Will in his presence and he and the other attesting witness signed in presence of the testator. Trial court has also placed reliance on an affidavit filed by one of the attesting witness, namely, Islam in mutation proceedings that his and Sattu's signatures were obtained on a blank paper on the plea that their evidence was required as witness in the mutation proceedings. Lower appellate court reversed the findings recorded by the trial court and allowed the appeal on the ground that attestation of the Will stood duly proved by evidence of Sattu. The same findings have been affirmed by the Board of Revenue while dismissing the second appeal.

It has been urged by the learned counsel for the petitioner that since the attesting witness Sattu did not state in his deposition that the testator of the Will signed in his presence and in presence of the other attesting witnesses and that the two attesting witnesses put their signatures on the Will in the presence of the testator and, as such, the attestation of the Will is not established as provided by Section 63 of the Succession Act and Section 68 of the Evidence Act and the lower appellate court as well as the Board of Revenue has committed manifest error of law in recording the finding that the attestation of the Will was duly proved.

In reply, it has been contended that the lower appellate court after analysing the deposition of Sattu, one of the attesting witness has recorded a finding of fact that the attestation of the Will was duly established and the said finding has been affirmed in the second appeal and the findings of fact based on appraisal of evidence is not liable to be interfered by this Court in writ jurisdiction.

I have considered the arguments advanced by the learned counsel for the parties and perused the record.

Section 63 of the Indian Succession Act deals with the execution of unprivileged Will and reads as under.

"63. Execution of unprivileged Will.- 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 personal acknowledgement 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."

The above Section 63 makes it clear that the testator is required to sign or affix his mark on the Will and the Will is required to be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark on the Will or has seen some other person signing the Will in the presence and on the direction of the testator or has received from the testator a personal acknowledgement of his signature or mark, and each of the witnesses are required to sign the Will in the presence of the testator.

Interpreting the provisions of Section 63 of the Indian Succession Act, Hon'ble Apex Court in the case of Girija Datt Singh Vs. Gangotri Datt Singh, AIR 1955 SC 346 has observed as under.

"In order to prove the due attestation of the Will, the profounder of the Will has to prove that 'A' and 'B', the two witnesses saw the testator sign the Will and they themselves sign the same in the presence of the testator."

Relying upon the deposition of Sattu, one of the attesting witness, trial court held that attestation of the Will is not proved, whereas the lower appellate court reversed the finding and held that Will has been proved. The finding recorded by lower appellate court has been affirmed in second appeal. Thus, the entire controversy revolves around the fact whether the deposition of Sattu fulfils the requirement of Section 63 of the Indian Succession Act. The true copy of the statement of P.W. 2, Sattu has been annexed along with the supplementary affidavit. The relevant deposition reads as under.

"lk{kh dks i=koyh ij nkf[ky vly olh;r fn[kk;h x;h o i xMs okyh tehu eSaus ns[kh gSA ftls 'kdqUrk cks jgh gSA ftlesa Tokj [kMh gSA Tokj 'kdqUryk us cks;h FkhA

X X X X X X X X

ml fnu dpgjh can Fkh ;gka ges dksbZ ugh feyk NqVVh FkhA olh;r lq[kiky 'kekZ ,MoksdsV }kjk fy[kh x;h Fkh yD[kh mUgs cqykdj yk;k FkkA ge rhuksa rglhy esa lk The attesting witness, Sattu in cross-examination has stated that the Will was drafted in his presence and the Lakhi Ram put his thumb impression and he signed and the other witness Islam also signed and the scribe of the Will also put his signature.

Now it is to be seen whether the above deposition fulfils the requirement of Section 63 of Indian Succession Act and the execution of the Will stands duly proved.

The statement of Sattu extracted above clearly goes to show that he was present at the time of drafting of the Will and Lakhi Ram put his thumb impression and he and the other attesting witness also put their signatures. Once the entire transaction of typing and thumb mark of the testator and the signatures of the attesting witness was carried out in the same sitting and at the same time, the only inference that can be drawn is that the signatures of the testator and the attesting witnesses were appended on the Will in the presence of each other. There is no question put to the witnesses to suggest that the thumb mark of the testator and the signatures of the witnesses on the Will were not made at the same time or any one of them was not present when the others put the thumb mark or signatures.

In view of the facts as stated by the attesting witness that the testator executed the Will and the witnesses attested the same at the same sitting, an inference can safely be drawn that the testator had put the thumb impression on the document in the presence of the witnesses and the witnesses appended their signatures on the document in the presence of the testator. It does not appear to be necessary for the attesting witness to give evidence in the way Section 63 of the Act is worded and the narration of events by the witness admitting inference of compliance of requirement of Section 63 of the Act would be sufficient to prove the attestation of the Will. If a witness owing to inadvertence omits to state specifically that testator affixed his signature/thumb mark in his presence and he had attested the document in the presence of the testator and narrates the sequence, which leads to no other inference but the one that the testator executed the document in his presence and he put his signatures in the presence of the testator, then this omission on the part of the witness would not invalidate the Will and shall not preclude the Court to infer this fact from the testimony of the witness. There is no requirement of law that witness must use the language of the Section to prove the requisite merits thereof. If it is clear from the sequence of events described by a witness that the attestation of the document was done in the presence of the testator, then the technicality that his evidence is not in conformity with the language used in Section 63 of the Act, would be of no avail. The view taken by me also finds support from the decision of Delhi High Court in the case of Ram Lal Vs. Hari Kishan, AIR 1988 Delhi 73. Reliance was also wrongly placed by the trial court on the affidavit of the other attesting witness made in mutation proceedings as it was inadmissible in evidence in the present case for want of having been proved in accordance with law.

Though the provisions of Section 63 of the Indian Succession Act requires attestation by two or more witnesses, but the due execution can be proved by producing only one attesting witness in view of Section 68 of the Evidence Act. Hon'ble Apex Court in the case of Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, AIR 2003 SC 761 has observed as under.

"Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, 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 capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though Will has to be attested at least by two witnesses mandatorily under Section 63 of the Indian Succession Act."

In the case in hand, the Will was attested by two witnesses, the execution whereof was duly proved by producing one of the attesting witness. The trial court wrongly and illegally dismissed the suit on the ground that statement of Sattu, P.W. 2, one of the attesting witness, since was not in conformity with the wordings contained in Section 63 of the Indian Succession Act, as such, the Will did not stand proved. The appellate court rightly reversed the judgment and decreed the suit, which has been maintained in the second appeal.

In view of the above facts and discussions, no interference is required in the impugned orders. The writ petition, accordingly, fails and stands dismissed in limine.

However, in the facts and circumstances, there shall be no orders as to costs.

09.11.2012

VKS