Laxmi Kant & Others vs Smt. Ganga Devi
2018 Latest Caselaw 770 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on  21.11.2017
 
Delivered on 22.05.2018
 
In Chamber
 

 
Case :- SPECIAL APPEAL No. - 236 of 2006
 

 
Appellant :- Laxmi Kant and others 
 
Respondent :- Smt. Ganga Devi
 
Counsel for Appellant :- A.K. Rai,Anshu Chaudhary,Vishnu Kumar Singh
 
Counsel for Respondent :- R.B. Singh
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ajit Kumar,J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Dharam Pal Singh, learned Senior Advocate, assisted by Sri Anshu Chaudhary, Advocate, for appellants. None appeared on behalf of respondents though the case has been called in revise. Hence, we proceeded to hear and decide this appeal finally, ex parte.

2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 has arisen from judgment of learned Single Judge in Testamentary Intestate jurisdiction. Vide judgment dated 06.02.2006, learned Single Judge has directed to grant Letter of Administration of Estate of deceased to plaintiff-respondent, Smt. Ganga Devi, in Testamentary Case No. 6 of 1999 in the matter of property of Late Panna Lal.

3. Plaintiff, Smt. Ganga Devi, filed Testamentary Suit registered as Testamentary Case No. 19 of 1999 on 18.08.1998 stating that Panna Lal died on 03.06.1993 and she being widow of Panna Lal is entitled for Letter of Administration in respect of Estate of deceased which he possessed at the time of death. The valuation of Estate described in the affidavit was Khata No. 246, Khasra No. 878 measuring 1.263 hectares, Khata No. 247, Khasra No. 1152 measuring 0.389 hectares; 1/2 share of the deceased in area No. 0.826 at Rs. 5 lacs and one house situated in Village Karb, Pergana and Tehsil Mant, District Mathura for Rs. 10,000/-.

4. It was contested by Appellants stating that deceased Panna Lal executed a 'Will' on 08.05.1993 (unregistered) in favour of his nephews Bhagwan Swaroop, Laxmi Kant, Kali Charan and Brij Kishore, sons of Babu Lal on the basis whereof those persons filed application for mutation of Estate of deceased Panna Lal in their favour and Tehsildar passed order accordingly. Plaintiff carried the matter in appeal before Additional Commissioner who set aside order of Tehsildar and thereagainst appellants filed Revision No. 17 of 1997-98. It is also said that a suit for cancellation of 'Will' being Original Suit No. 483 of 1996 is pending and, therefore, petition for grant of Letter of Administration is not maintainable.

5. Learned Single Judge formulated following four issues:

"1. Whether the plaintiff Smt. Ganga Devi, widow of late Panna Lal is entitled to grant of Letter of Administration?

2. Whether Panna Lal had executed 'Will' dated 8.5.93 in favour of Babu Lal son of Hajari Lal, Bhagwan Swaroop son of Babu Lal, Kali Charan son of Babu Lal and Brij Kishore son of Babu Lal as claimed by them in respect of the property in dispute?

3. Whether petition for grant of Letters of Administration is maintainable when plaintiff has filed suit No.483 of 1996 for cancellation of 'Will' alleged to have been executed by deceased Panna Lal?

4. Whether this Court can adjudicate upon the validity in execution of 'Will' alleged to have been executed by the deceased Panna Lal?"

6. Plaintiff examined Nathi Lal and Ganga Prasad as PW-1 and PW-2 while defendants-appellants examined Dau Dayal, a blind person, as attesting witness to 'Will' as DW-1 and Ram Dayal, another attesting witness as DW-2.

7. Issues-3 and 4 were taken together and decided holding that since Letter of Administration can be granted only by this Court, therefore petition is maintainable and this Court has power to adjudicate upon validity of 'Will' alleged to have been executed by deceased Panna Lal, set up in defence by defendants-appellants. Original 'Will' was not filed before learned Single Judge.

8. DW-1 was an attesting witness who had suffered loss of eye-sight, according to his own admission, at the age of 12 years. He was 17 years of age at the time of execution of 'Will'.

9. DW-2, Dau Dayal, though admitted that he has attested 'Will' as a witness, but further said that he does not know when Panna Lal died and whether 'Will' was registered or not.

10. PW-1, Nathi Lal, is brother of plaintiff-respondent, Ganga Devi, and said that deceased Panna Lal was not well for almost a month and died on 03.06.1993 at Village Karam, District Mathura. He has not executed any 'Will' during his life time and his nephews made forgery and prepared a 'Will' illegally for which suit for cancellation has been filed.

11. PW-2, Ganga Prasad, stated that Panna Lal had three daughters and died due to illness. He has not executed any 'Will'. Panna Lal had ancestral property and Babu lal used to live separately.

12. Learned Single Judge from the statement of both the alleged attesting witnesses found that they have not stated anywhere that 'Will' was signed in their presence or that they have signed the 'Will' in presence of deceased Panna Lal as attesting witnesses. Dau Dayal, being blind, there was no occasion for him to see that Testator has signed or affixed his mark on 'Will' since he was not in a position to depose such facts. The word 'seen' used in Section 63 of Indian Succession Act, 1925 (hereinafter referred to as "Act, 1925") is of importance and once a person has not seen Testator signing the 'Will', it cannot be said that he is an attesting witness for execution of 'Will' by Executor. Before this Court, in the statement of both the persons, they have not said that 'Will' was signed in their presence. Thereupon learned Single Judge found that 'Will' was not signed in accordance with Section 63 of Act, 1925. Hence, Issue-2 was answered in favour of plaintiff and against defendants-appellants.

13. Then Court proceeded to answer Issue-1 and found that Panna Lal had three daughters. It was also not disputed that plaintiff was widow of deceased Panna Lal and 'Will' relied by defendant-appellant was not proved, therefore, Issue-1 was answered in favour of plaintiff. Suit has accordingly been decreed.

14. Learned Senior Advocate, Sri Dharm Pal Singh, assisted by Sri Anshu Chaudhary, Advocate, contended that learned Single Judge has wrongly held that 'Will' was not proved and is not a genuine document. He further contended that suit for cancellation of 'Will' was already pending in Civil Court which was competent to decide such matter. Testamentary Suit thus ought to have been dismissed or stayed under Section 10 C.P.C. He said that application under Section 10 C.P.C. filed before Court was wrongly rejected on 12.01.2006. Learned Single Judge has also erred in disbelieving original testimony of DW-1, Dau Dayal, merely on the ground that he was blind and could not have seen Testator signing the 'Will'. No such question was put to witness and therefore, he could not have been disbelieved for the reason that he has not stated that he has seen Testator's signature on the 'Will' or that he was present. Similarly testimony of DW-2 has also been wrongly rejected. It is, thus, contended that Testamentary Suit has wrongly been decreed vide order under appeal and the same deserves to be set aside.

15. Points for determination, which arise in this appeal for adjudication by this Court, are:

(I) Whether Testamentary Suit ought to have been stayed by taking recourse to Section 10 C.P.C.?

(II) Whether execution of 'Will' was proved in accordance with law?

(III) Whether interpretation of word 'seen' in Section 63 of Act, 1925 by learned Single Judge is correct and in accordance with law?

(IV) Whether pendency of Original Suit for cancellation of 'Will' instituted by plaintiff-respondent rendered Testamentary Suit not maintainable?

16. We proceed to decide first, Issue-1, "whether Testamentary Suit ought to have been stayed under Section 10 C.P.C."

17. Testamentary Suit was presented before Registrar of this Court vide Plaint dated 01.08.1998 on 18.08.1998 and entertaining the same Court passed order on 19.08.1998. In the counter affidavit filed by Laxmi Kant, son of Babu Lal, it was pleaded that late Panna Lal executed a 'Will' in his favour and others, named in para-6 of the affidavit accompanying Testamentary Plaint, and on that basis Tehsildar passed order on 19.08.1994 rejecting application for mutation. Thereagainst Appeal No. 32 of 1994-95 was filed before Sub-divisional Magistrate, Mant, District Mathura by Shri Bhagwan Swaroop, Laxmi Kant, Kalicharan, Brij Kishor, sons of Babu Lal which was allowed by order dated 14.01.1998 and the matter was remanded to Tehsildar to pass fresh order in accordance with law. We also find from record that an application was filed by Bhagwan Swaroop and others before Tehsildar for mutation in which an ex-parte order was passed on 29.01.1994. Smt. Ganga Devi then filed an application dated 09.03.1994 stating that the said order has been obtained on the basis of forged 'Will', whereupon Tehsildar, Mant vide order dated 09.03.1994 stayed operation of the order dated 29.01.1994. Bhagwan Swaroop and others filed appeal before Sub-divisional Magistrate, Mant but the same was rejected by order dated 17.05.1994 and thereafter Revision No. 61 of 1993-94 was filed before Commissioner, Agra. During pendency of Revision since Tehsildar had already cancelled order dated 29.01.1994 and theiragainst appeal was rejected by Sub-divisional Magistrate and Revision by Commissioner on 25.09.1995, Commissioner dismissed the Revision having become infructuous by order dated 19.01.1998.

18. It is also pointed out that Smt. Ganga Devi filed Original Suit No. 483 of 1996 in the Court of Civil Judge (Junior Division), Mathura seeking a declaration that 'Will' dated 08.05.1993 is forged and fictitious. She got some amendment in the grounds for declaration of 'Will' as forged and fictitious which amendment was allowed by Civil Judge (Junior Division)-II Mathura by order dated 27.04.1998 whereagainst Babu Lal and others filed Civil Revision No. 116 of 1998 which was dismissed. Copy of Plaint is part of record and we find that reliefs sought therein read as under:

^^v- ;g fd ctfj;s ?kks"k.kkRed fMdzh bl vej dh izfroknhx.k ds f[kykQ ikfjr dh tkos dh dfFkr olh;r fnukad 8%5%93 ,d tkyh o QthZ izHkkoghu ,oa 'kwU;hdj.k ?kksf"kr fd;s tkus dh d`ik dh tkosA

vk- ;g fd ctfj;s fMdzh LFkk;h fu"ks/kkKk izfroknhx.k uqekbUnxku dks LFkk;h :i ls fu"ksf/kr fd;k tkos fd okni= ds vUr esa of.kZr vkjkth futkbZ tks oknuh ds 'kkUrhiwoZd dCts esa gS] fdlh izdkj dh eqnky[kr ;k fd oknuh ds Qly iSnk djus o dkVus esa fdlh izdkj dh fo?u iSnk u djsA^^

"A. That a decree of declaration may kindly be passed against the defendants declaring the will dated 08.05.1993 null and void on account of the same to be forged and fake.

B. That by way of a decree for permanent injunction, the representatives for the defendants may kindly be permanently restrained from any type of interference in the property in question, which is in the peaceful possession of the lady plaintiff and mentioned at the bottom of the plaint or from creating any type of obstruction for the lady plaintiff to produce and harvest crops thereat." (English Translation by Court)

19. Section 10 C.P.C. reads as under:

"10. Stay of suit.- No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation: The pendency of a suit in a foreign Court does not preclude the courts in India from trying a suit founded on the same cause of action."

20. In order to attract Section 10 C.P.C., we find following conditions must exist:

(A) The matter in issue in the suit is directly and substantially in issue in a previously instituted suit between the same parties.

(B) The previously instituted suit is pending:

(i) in the same Court in which subsequent suit is brought; or

(ii) in any other Court in India (whether superior or inferior or coordinate); or

(iii) in any Court beyond limits of India established or continued by Central Government; or

(iv) before Supreme Court,

(C) where previously instituted suit is pending in any of the Court of Class (ii) or (iii) and such Court is a Court of jurisdiction competent to grant the relief claimed in the subsequent suit.

21. If the above conditions are satisfied, only then question of stay of subsequent suit under Section 10 C.P.C. would arise and not otherwise. Here in the present case, we find that Civil Court where Original Suit No. 483 of 1996 was pending could not have granted relief for which Testamentary Suit was filed. For this reason alone, in our view, apparently Section 10 C.P.C. is not attracted. In taking the above view, we are fortified by certain authorities which we may refer hereinafter.

22. In Narikkote Kunnamangalath Ittisseri Kuberan Nambudri v. Pothera Kalloor Koman Nair AIR 1925 Mad 574, Court held that expression 'matter in issue' means entire subject matter in controversy and not many questions involved. It said, "I believe the real intention of the Legislature in framing Section 10 of the Civil Procedure Code was merely to prevent later suits relating to the same subject-matter being tried before an earlier suit relating to the same subject-matter is tried and disposed of."

23. Relying on an earlier decision Sreeramulu V. Sreeramulu AIR 1922 Mad. 304, Court said that expression "matter in issue" in Section 10 has reference to the entire subject in controversy between the parties.

24. In Jugometal Trg Republike Vs. Rungta and Sons (Private) Ltd. AIR 1966 Cal 382, application of Section 10 came up for consideration before a Division Bench. Appellant therein agreed to sell to defendant, 10,000 long tons of iron ore (magnetite), ten per cent more or less, depending on charter party conditions at buyer's option. The price was to be 85 Shillings per dry long ton based on 65 per cent Fe (Ferrous) content. Shipment was to take place between February and June, 1957 and payment was to be made under an irrevocable, divisible and transferable letter of credit, to be opened by the buyer in favour of seller, with a validity of 60 days, following the date of opening of credit in English pounds with a first class bank in India. Such letter of credit was to be opened at the latest by the end of December. 1956, covering 100 per cent of the goods, the value being based on 65 per cent Fe content. Provisional payment under the letter of credit was to be made against specified documents, inter alia, a full set of bills of lading, provisional invoice, certificate on the preliminary sampling etc. Final settlement was to be made on the basis of dry weight determined on the discharge of goods at the percentage of Fe content found out on the basis of analysis. Defendant opened a letter of credit on or about February 12, 1957 for pounds 21,250 through United Commercial Bank Ltd., Calcutta, representing the value of 5000 tons of iron ore. Plaintiff effected shipment of 3510 long tons of iron ore per SS. Alriadah on or about March 4, 1957, utilised the letter of credit to the extent of pounds 15,168 and odd. The case of plaintiff was that there was an understanding between the parties and it was agreed that balance of goods under the contract would be shipped by July 10, 1957 from the port of Calcutta and that letter of credit would be amended accordingly. According to plaintiff, validity of letter of credit extended up to July 31, 1957 and its amount was increased to pounds 40,375. Between June 25, 1957 and July 16, 1957 plaintiff loaded 7037 long tons of iron ore. There was some delay in loading of the ship on account of its having been moored midstream in the river Hooghly. On July 17, 1957 plaintiff informed defendant of having shipped the goods and requested to increase the amount of letter of credit to cover increased quantity, shipped, and to extend shipping date to July 17. On July 20, defendant sent a cable, the purport whereof was, that bank had been instructed to increase the credit and defendant's bankers should send documents by the first plane. Plaintiff got an impression that defendant was not objecting to the delay in shipment and has instructed bankers to augment letter of credit. Later plaintiff learnt that defendant had given instructions otherwise. The steamship left Port of Calcutta on or about July 17, 1957 carrying plaintiff's goods, valued at approximately five lakhs of rupees. Plaintiff filed suit in Admiralty Jurisdiction being Suit No. 2 of 1957 in Calcutta High Court. Plaintiff had the vessel arrested in the Port of Madras on August 10, 1957. Defendant appeared in Court and deposited with Registrar, Rs. 4,50,880, as security, for obtaining release of vessel. Admiralty Suit was ultimately dismissed on April 2, 1961. Plaintiff filed another suit on April 18, 1961 for recovery of money. Defendant filed an application under Section 10 for stay of suit stating that issues are virtually same as were up for determination in Admiralty Suit No. 2 of 1957 which was dismissed on April 2, 1961, but appeal was pending. While considering applicability of Section 10, Court said that for the purpose of application of Section 10, three conditions must be satisfied:

(i) The matter in issue in the second suit must be directly and substantially in issue in the prior suit;

(ii) the prior suit must be pending in the same Court or in any Court in India having jurisdiction to grant the relief claimed; and;

(iii) where previously instituted suit is pending in any Court in India etc., such Court is of competent jurisdiction to grant relief claimed in the subsequent suit.

25. Court held that all three conditions must be present and if anyone is missing, Section 10 cannot be applied. Court observed that it is not the identity of the cause of action but whether the matter directly and substantially in issue is same in two suits.

26. Another decision is a Division Bench judgment of Madhya Pradesh High Court in Lekhraj Diddi Vs. Sardar Sawan Singh AIR 1971 MP 172. Sardar Sawan Singh obtained a registered sale deed for a consideration of Rs. 40,000/- from Lekhraj Diddi. The premises so purchased was given thereafter to Lekhraj Diddi on rent. He committed default in payment of rent, hence a suit for ejectment of Lekhraj Diddi was filed by Sardar Sawan Singh. Objection was raised by Lekhraj Diddi in the written statement that sale-deed was nominal and not to be acted upon. The amount alleged to have been paid towards rent was actually interest on Rs. 40,000/- which Lekhraj Diddi had borrowed from Sardar Sawan Singh. He also raised plea of not being tenant of Sardar Sawan Singh and, therefore, not liable for eviction. He also filed a suit for declaration that sale deed executed in favour of Sardar Sawan Singh was not to be acted upon and no title was passed to Sardar Sawan Singh. This suit of Lekhraj Diddi, in fact, was filed before eviction suit filed by Sardar Sawan Singh, hence in the eviction suit filed by Sardar Sawan Singh, Lekhraj Diddi filed an application under Section 10 requesting for stay of suit. Application was rejected by Trial Court and thus matter came up in revision in High Court, before a Division Bench. Court found that in the suit filed by Lakhraj Diddi relief was only in respect to sale-deed dated 06.12.1963 while in the eviction suit, relief was claimed in respect to alleged contract of tenancy. The question, whether or not there was a contract of tenancy, was not directly and substantially in issue in the suit filed by Lekhraj Diddi, which was the only issue directly and substantially raised in subsequent suit No. 16-A of 1969 filed by Sardar Sawan Singh for ejectment and arrears of rent. Consequently, Court observed that Section 10 C.P.C. has no application. It confirmed the order passed by Trial Court and dismissed Revision.

27. A similar issue came up before a Single Judge of Mysore High Court in Channabasappa Kamadal and Sons Vs. Kishan Chand and Co. and others AIR 1972 Kant 112. Plaintiff Channabasappa Kamadal filed a suit for recovery of Rs. 4,977.47 as damages for breach of contract to supply and purchase cocoanuts by defendants. A similar suit was filed by defendant Kishan Chand and Compnay in the Court of Senior Sub-Judge at Delhi to recover Rs. 13,279.85. Suit at Delhi was filed earlier then the Suit filed in the Court of Munsiff at Arsikere (State of Karnataka). On an application filed under Section 10, Munsiff at Arsikere stayed the suit until disposal of suit filed in the Court of Senior Sub-Judge, Delhi. Plaintiff Channabasappa Kamadal then brought the matter to High Court. Referring to Section 10, Court held as under:

"The three essential conditions that are necessary for grant of stay order under Section 10 are: (1) that the matter in issue in the second suit is directly and substantially in issue in the previously instituted suit; (2) that the parties in the two suits are the same, and (3) that the court, in which the first suit is instituted, is a court of competent jurisdiction to grant the relief claimed in the subsequently instituted suit. Therefore, what is required to be considered is as to whether the first suit is instituted in a court of competent jurisdiction to grant the relief claimed in the subsequently instituted suit; it deals with regard to the competency to entertain and grant the relief of the nature claimed in the suit. This does not deal with regard to the questions relating to the territorial jurisdiction of the court to determine the matter. It deals with the competency of that court to grant relief. Such questions have come up for considerations before the courts and it has been stated that what is required to be determined is the competency to grant relief. For example, if the proceedings which are sought to be stayed is in the court of exclusive jurisdiction, then a suit cannot be stayed. (Troyloknath v. Macleod (1901) ILR 28 Cal 28 at p. 34 and Kalipada Vs. Charubala AIR 1933 Cal 887).

(emphasis added)"

28. The ratio is that a suit, if filed in a Court of exclusive jurisdiction, then such suit cannot be stayed. Testamentary Suit filed in this Court comes in this category and, therefore, as we have already said, Section 10 C.P.C. will not be attracted.

29. In Adhish Chandra Sinha Vs. Hindusthan Gas & Industries Ltd. and another AIR 1985 Cal. 154, a Division Bench of Calcutta High Court reiterated the view that to attract Section 10 C.P.C. subject matter in issue in subsequent suit must be directly and substantially in issue in the previous suit. In other words, the subject-matter of two suits must be identical. Merely because one of the questions in issue is same as in the other suit, would not make the subject-matter identical.

30. We have also advantage of a Single Judge judgment of this Court dealing with Section 10 C.P.C. in Bijendra Kumar and others Vs. Basant Kumar AIR 1994 All 81. Smt. Savitri Devi, widow of Ghanshyam Singh filed Suit No. 947 of 1985 against one Swatantra Kumar and Ved Singh seeking permanent injunction restraining defendants from illegally entering upon the residential premises of plaintiff, situated at 12, Tara-puri, Harihar Khera, Lisari Road, Meerut and not to take possession of the same, directly or through police, without adopting adequate legal recourse. Plaintiff claimed herself to be sole owner of the property. In the written statement filed by Smt. Santosh Kumari, plaintiff's title was denied. She claimed that property was joint family property in which her deceased husband Swantantra Kumar was a member. Defendant Basant Kumar claimed 1/5th share in the property. A specific issue was framed by Trial Court, "whether plaintiff was sole owner in possession of the disputed house and if so, its effect?". Trial Court found that plaintiff, Smt. Savitri Devi, failed to prove her case regarding sole ownership and consequently dismissed the suit. Savitri Devi filed Appeal No. 324 of 1988 which was allowed by 13th Additional District Judge, Meerut by judgment dated 24.09.1990. A second appeal being Second Appeal No. 1848 of 1990 was filed by Smt. Santosh Kumari. In the meantime, Basant Kumar (Minor) filed Suit No. 801 of 1990, through his mother and guardian Smt. Santosh Kumari, for partition of movable and immovable properties, claiming 1/5th share in the properties. Plaint case was that Basant Kumar's father Swatantra Kumar, who was son of Ghanshyam Singh, had 1/5th share in the joint family property along with three brothers, namely, Brijendra Kumar, Rajendra Kumar, Jitendra Kumar and their mother. Smt. Savitri Devi was also arrayed as defendant in the said suit. Defendants filed written statement denying plaint allegations and also sought stay of Suit No. 801 of 1990 under Section 10 C.P.C. in view of decision of Appellate Court in First Appeal No. 324 of 1988, arising out of Suit No. 947 of 1985 filed by Smt. Savitri Devi. Trial Court answered the question with regard to stay of suit under Section 10 C.P.C. in negative whereupon defendants preferred Revision. This Court, while referring to Section 10, said that under Section 10 Court is prohibited from proceeding with the trial of a suit where three conditions exist, namely (i) where there is a previously instituted suit between the same parties, (ii) where the matter in issue is directly and substantially the same in both the suits, and (iii) where a suit is pending between the same parties, or between parties under whom they or any of them claim litigating under the same title. Court thereafter held that subject matter of two suits was not same and, therefore, Section 10 was not applicable, simply because many or more issues in both the suits are common.

31. In the present case, we find that in the suit filed for cancellation of 'Will', only question up for consideration is, "whether 'Will' was actually executed or it was a forged and fictitious"; while in Testamentary Suit, other issues are also involved namely whether Plaintiff Smt. Ganga Devi was entitled to grant letter of administration, which could not have been subject matter of issue in the suit filed by Smt. Ganga Devi for cancellation of 'Will'. Therefore, it cannot be said that Section 10 C.P.C. is attracted in the case in hand.

32. No otherwise authority has been placed before us by learned Counsel for appellant to persuade us to hold that Section 10 C.P.C. is attracted in the case in hand and learned Single Judge has erred in rejecting application for stay of Testamentary Suit in any manner. We find no reason to take a different view than what has been said by learned Single Judge, and, therefore, this question is answered against appellant.

33. Questions 2 and 3 can be considered and answered together. It could not be disputed by learned Counsel for appellant that 'Will' had to be proved in the manner as provided in Section 63 of Act, 1925. It reads as under:

"63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:--

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." (emphasis added)

34. Section 63 provides procedure for execution of unprivileged 'Will'. Clause (c) clearly says that 'Will' shall be attested by two or more witnesses, each of whom has seen Testator sign or affix his mark to the 'Will'. It has been held that attestation in accordance with Section 63 (c) of Act, 1925 is mandatory and in absence of attestation in accordance therewith, it cannot be said that 'Will' has been properly attested.

35. In Moonga Devi and others Vs. Radha Ballabh AIR 1972 SC 1471, Court said:

"It is not merely the genuineness of signatures on which the proof of the execution of the will under Section 63 of the Indian Succession Act depends. It has to be proved that the will was attested in accordance with Clause (c) of that section."

(emphasis added)

36. Same issue came up for consideration in Kashibai and another Vs. Parwatibai and others (1995) 6 SCC 213. Court referring to Section 68 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") observed that it relates to the proof of execution of document required by law to be attested. Admittedly, a Deed of Will is one of such documents which necessarily require by law to be attested. Section 68 of Act, 1872 states, if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.

37. "Attestation" and "execution" are two different acts one following the other. There can be no valid execution of a document which under the law is required to be attested, without the proof of its due attestation. If due attestation is not proved, the fact of execution document is of no avail. Court in Kashibai and another Vs. Parwatibai and others (supra) then referred to Section 63 of Act, 1925 and said as under:

"Clause (C) of Section 63 provides that the Will shall be attested by two or more witnesses, each one 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 acknowledgment of his signature or mark on the signature of such other person; and each of the witnesses should 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."

38. Court then referred to definition of expression "attested", contained in Section-3 of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") which reads as under:

"3. "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant but it shall not be necessary that more than one of such/Witnesses shall have been present at the same time, and no particular form of attestation shall be necessary." (emphasis added)

39. Then in respect of what is required for attestation and to prove attestation, Court said:

"Having regard to the aforementioned definition an attesting witness is a person who in the presence of an executant of a document puts his signature or mark after he has either seen the executant himself or someone on direction of the executant has put his signature or affixed his mark on the document so required to be attested or after he has received from the executant a personal acknowledgment of his signature or mark or the signature or mark of such other person."

(emphasis added)

40. Court observed that as a matter of fact, none of attesting witness had deposed that executor has signed the 'Will' before them and that being so, attestation was not proved in law resulting in that even execution of 'Will' was not proved. It is true that a witness while deposing statement may not use the language of Section to prove requisite merits but then something which is required by law must be stated in a manner which may be construed by a person of ordinary prudence that it satisfies requirement of law.

41. In the present case, with respect to factum of 'seen', there are two witnesses, one is blind hence question of 'seen' does not arise and another did not depose at all that he has seen Testator executing 'Will'. It was not a question of cross-examination by other side but witness had to prove. Therefore, this statement had to be made by witness himself. The argument that no question was raised is of no consequence and in fact is misconceived one.

42. Again the question of validity of 'attestation' and how it will be proved, came for consideration in Nagulapati Lakshmamma Vs. Mupparaju Subbaiah 1998 (2) SCALE 705. After referring to Section 63 of Act, 1925 Court made a distinction between 'Testator' and 'Attestors' in the matter of signing 'Will' and said:

"The Section makes a vital distinction between the testator and the attestors in the matter of signing the Will. The testator may sign or affix his mark himself or direct some other person to sign in his presence. The reason for such a provision is quite obvious. Many a time, people who are desirous of making testamentary dispositions may be physically incapacitated from signing their names or affixing their marks on account of illness or other causes. Such persons should not be deprived of an opportunity of making a Will. Such persons can instead of signing or affixing their marks themselves can direct some other person to sign in their presence. But in the case of attestors such an enabling provision is absent. The section expressly states that each of the witness shall sign the Will in the presence of the testator. The privilege or power of delegation, if we may say so, is not available to the attesting witnesses under the section. When the same section makes a distinction expressly between a testator and an attestor it is not possible to accept the contention that an attestor can also direct some other person to sign or make a mark on his behalf. If a witness to the execution of the will chooses to do so, he is not an attesting witness as there is no attestation by him as contemplated by Section 63(c) of the Indian Succession Act. Consequently, he will not be an attesting witness for the purpose of Section 68 of the Indian Evidence Act."

(emphasis added)

43. Court then proceeded to hold that expression 'attestation' in Section 63(c) of Act, 1925 is same as is the definition in Section 3 of Act, 1882 and, therefore, it is absolutely necessary that the attesting witness should either sign or affix his thumb impression and thereafter prove the same himself.

44. The statutory provisions discussed above makes it clear that attesting witness must have 'seen' Testator to sign or affix his mark or his Delegate. The word 'seen' has its own relevance and consequences. If an attesting witness has not seen Testator signing or affixing his mark on the document, he cannot be said to be an attesting witness and it cannot be said that document was validly attested.

45. When we look into the requirement of Section 63 vis-a-vis the evidence of witnesses, we find that DW-1, Dau Dayal, who was one of the attesting witnesses, himself admitted that he was not blind since birth but became blind before he attained the age of 12 years. He deposed evidence on 16.10.2000 mentioning his age 54 years. Meaning thereby, his year of birth would be 1946. 'Will' was executed in 1993, when DW-1, Dau Dayal, was around 47 years of age. At the time of execution of 'Will', DW-1 was admittedly a blind person. He admits that the 'Will' when executed, he was blind. However, he has signed the will as attesting witness. He only got 'Will' read before attesting the same and was not an attesting witness of sign of Testator to the 'Will'. The relevant statement of DW-1 in cross examination reads as under:

^^iUuk yky dh e`R;q 3&6&1993 bZ0 dks gq;h FkhA iUuk yky us tc olh;r fy[kh ml le; mudh mez 70 lky FkhA iUuk yky us olh;r 8&5&93 dks vius Hkrhtksa ds uke dh FkhA eSa mu fnuksa esa Hkh vU/kk Fkk xokg dh gSfl;r ls eSus olh;r ukek ij vaxwBk yxk;k FkkA eSus olh;r ij vxwaBk yxkus ds igys mldks i<+ok dj lqu fy;k FkkA eSa 12&13 lky ls va/kk gwaA^^ (emphasis added)

"The death of Panna Lal occurred on 03.06.1993. Panna Lal was aged 70 when he wrote the will. On 08.05.1993, Panna Lal wrote the will in favour of his nephews. I was blind those days as well. I had put my thumb impression on the will as a witness. Before putting my thumb impression over it, I had got it read over to me." I am blind for 12-13 years."

(English Translation by Court)

46. Learned Single Judge, therefore, has rightly observed that DW-1 did not prove attestation of 'Will' as contemplated under Section 63 of Act, 1925 since he has not seen Testator signing the 'Will'.

47. DW-2, Ram Dayal, another attesting witness, though admitted that he has signed the 'Will' as an attesting witness, but neither in his examination-in-chief nor in cross-examination stated that it was signed by Testator and he has seen the same. He has also said that 'Will' was written by Ramesh and he read it to him. Therefore, he was not a witness who has 'seen' Testator signing the 'Will'. Statement in cross-examination made by Ram Dayal, DW-2, reads as under:

^^esjk iUuk yky ds lkFk mBuk cSBuk Fkk blfy;s eSa mudks tkurk gwWaA eq>s ugh irk fd iUuk yky dc ejsA iUuk yky us olh;r vius Hkrhtksa ds uke fy[khA eSa olh;r ij xokgh djus ds fy;s iUuk yky ds dgus ij x;k FkkA eq>s ugh irk fd olh;r dh jftLVªh gq;h Fkh ;k ughA olh;r lgh Fkh QthZ ugh FkhA jes'k tkfr dk cfu;k gS mUgksus fy[kk Fkk vkSj i<+dj lquk;k FkkA olh;r 1993 esa fy[kh x;h Fkh rkjh[k eq>s ugh irkA^^ (emphasis added)

"I had interaction with Panna Lal; hence, I am acquainted with him. I do not know when Panna Lal died. Panna Lal wrote the will in favour of his nephews. On the instance of Panna Lal, I had gone to stand a witness to the will. I do not know whether the will had been registered or not. The will was genuine and not forged. Ramesh is Baniya by caste. He had written and read over its contents. The will was written in the year 1993. I do not remember its date." (English Translation by Court)

48. We are, therefore, satisfied that 'Will' in question was not ''attested' as provided under Section 63 of Act, 1925 and hence its execution was not proved. Therefore, both Questions-2 and 3 are answered against appellant.

49. While coming to Question-4, we find that Testamentary Suit instituted by Smt. Ganga Devi before this Court was clearly maintainable for the reason that she was entitled to file aforesaid Suit and mere filing of a Civil Suit for cancellation of 'Will' in Civil Court would not oust jurisdiction of this Court to entertain Testamentary Suit and pass appropriate order. No statutory law or judicial precedent in this regard, taking an otherwise view, has been cited by learned counsel for appellants. Therefore, we answer Question-4 also against appellants.

50. In the result, we find no merits in the appeal. Dismissed.

Dt. 22.05.2018

PS