Smt. Rukhamabai W/O Vithobaji ... vs Narsuram And Ors.
2003 Latest Caselaw 462 Bom

JUDGMENT

V.M. Kanade, J.

1. The Appellants are the original defendants and the respondents are the original plaintiffs. For the sake of convenience, the parties will be referred as plaintiffs and defendants.

2. Facts in brief are as under :

Umabai who was the original plaintiff died during the pendency of the suit. She was the mother of defendant Nos. 1 and 2. The defendant No. 3 is the son of predeceased daughter of the plaintiff and defendant No. 4 is the nephew of the plaintiff.

3. The case of the plaintiff in the plaint is that due to old age she had become weak and, therefore, the defendants came to her residence on or about 30th May, 1953 and took her thumb marks on some papers. Subsequently, she came to know that her thumb impression was obtained on a partition deed (Farkatnama) whereby the lands which were owned by the plaintiffs were divided between the defendants. It is the case of the plaintiff that alongwith the Farkatnama, the defendants had taken her thumb mark on the will whereby she had bequeathed her immovable property and house property to the defendants. The plaintiffs case is that she never intended to transfer any of her property to the defendants or to anybody else and, therefore, she filed a suit for declaration that the said documents were void and that they do not create any title and it was obtained by fraud. She claimed permanent injunction against the defendants. She also claimed declaration that she was in possession of the property. In the said suit in para 4 of the plaint a specific averment was made by the plaintiff Umabai that she had executed a will of her property in favour of her grand sons Narsuram, Guruprasad, Vishwanath and Vilas. The defendants filed their written statement and denied the allegations of the plaintiff.

4. During the pendency of the suit, Umabai died and by virtue of the will that she had executed in favour of the four grandsons they were brought on record as plaintiffs. Issues were framed by the Trial Court and the Trial Court decreed the suit of the plaintiff by declaring that the plaintiffs are the owner of the suit land and also issued an order of injunction restraining the defendants from interfering with the possession of the plaintiffs over the suit land.

5. The defendants being aggrieved by the said Judgment and Order, preferred an Appeal before the 3rd Additional District Judge, Bhandara who confirmed the Judgment and Order of the Trial Court and dismissed the appeal filed by the defendants. Hence, this Second Appeal.

6. This appeal was admitted on 19.7.1991 and the following order was passed :

Heard. Admit on ground No. 4.

Ground No. 4 reads as under :

(a) Were not the Courts below in error in finding that the "Will" dated 7.12.73 (Exh. 106) was proved?

(b) Were not the Courts below in substantial error of law in not correctly appreciating the ratio of -

(a) and

(b) ?

(c) Were not the Courts below in error in relying on the testimony of P.W. 1 Narsuram, even though he was an interested witness - being a legatee in the document (Exh. 106)?

7. The learned Counsel appearing on behalf of the appellants submitted that so far as the other findings are concerned they were not challenged and at the appellate stage the Counsel appearing on behalf of the appellants advanced his arguments only on the point of validity of the will and it was submitted by him that the plaintiffs could not maintain the suit without proper proof of the will.

8. So far as the factual position is concerned, in the plaint, plaintiff Umabai had herself pleaded that she executed a will in favour of her 4 grandsons. The said averments are as follows :

The plaintiff has revoked these farkatnamas as soon as she got the knowledge of these farkatnamas by executing a will of her property in favour of her grandsons viz. Narsuram Guruprasad, Vishwanath and Vilas.

9. After the plaintiff Umabai died, the plaint was amended and paras 6-A and 6-B were added which read as under :

6-A. That, the original plaintiff Umabai died on 28.5.1981. However, before her death Umabai executed a will bequeathing all her property including the suit property to the plaintiffs 1 to 4 on 17.12.1983. The said will was executed in the presence of the witnesses and the witnesses also attested her thumb impression in her presence. The said will was duly executed by her while she was in a good conscience state of mind. The said will was registered on 13.12.1973. The present plaintiffs who are substituted as L.Rs. of the deceased Umabai was her legatees and as such are the owners in possession of the suit property. The whole interest in the properties of Umabai then devolved on the present plaintiff on and from 28.5.1981 and they have a surviving right to sue the defendants who cannot either under law or in facts claim any right or interest in the suit properties either during the life time of deceased Umabai or after her death on 28.5.1981.

6-B. That, on 18.6.1981 the original will deed dated 7.12.1973 was filed in this suit as per list Exh. 63 and on application the Court was pleased to keep the original will deed dated 7.12.1973 in sealed cover and the said will with sealed cover was kept with Nazir for safe custody. That on 10.12.1987 the Nazir reported in writing that the said envelops with the still was not traceable hence primary evidence could not be produced. However, xerox copy of the said original will deed dtd. 7.12.73 is produced as secondary evidence.

10. In the Trial Court the plaintiffs examined Narsuram who is one of the legatees, Nathu Wanve who is examined as an attesting witness, then Nathu Andulkar who was a scribe who had written the documents. Nathu Wanve who is an attesting witness, has deposed that the scribe Nathu Andulkar had read over the document to her when he has taken to the place of the plaintiff Umabai. He has stated that the said document was a will. He further stated that he does not remember the name of that woman. After the document was read over, the woman made a thumb impression in his presence and he also signed in her presence. He has identified Exh. 106 which is the said will in question. He has staled that, however, he did not know Peerbax and he had not seen him signing Exh. 107. He has stated that his signature was already there before he signed it. He has also stated that witness No. 1 Narsuram beneficiary of the said will was also present there.

11. The Trial Court has relied on the said evidence and has held that the said will is proved. The Appellate Court also given concurrent findings. The learned Counsel appearing on behalf of the appellants submitted that the provision of Section 63 of the Indian Succession Act, have not been complied with. Section 63 of the Indian Succession Act reads as under :

63. Execution of unprivileged wills.- Every testator, not being a soldier employed in an expedition nor 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 marks 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 acknowledgment 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.

12. In my-view, the submission made by the learned Counsel appearing on behalf of the appellants cannot be accepted. The attesting witness has clearly stated that the testator has signed in his presence and that he had put his signature in his presence. Section 68 of the Indian Evidence Act, 1872, lays down that so far as the proof of the will is concerned, even if one attesting witness is examined that would be a sufficient compliance for the purpose of proving the said will. In the present case the other attesting witness was not available. The said will was executed in 1973 and the evidence has been recorded in the year 1988. Section 68 of the Indian Evidence Act, 1872, clearly contemplates the situation that both the attesting witnesses may not be available when a probate of the will is being issued by the Court. Under these circumstances, it makes it clear that even if one attesting witness deposed that he had seen the testator signing in his presence and he had signed in his presence, that would be a sufficient compliance of the provisions of Section 68 of the Indian Evidence Act.

13. In this case, there is another strong circumstance which is in favour of the plaintiffs and this circumstance is that the person who had signed the will herself had stated in the plaint that she had executed a will in favour of her grandsons, There is thus a specific admission given by the testator that she had signed the said will. Section 70 of the Indian Evidence Act; 1872 which contemplates such a situation, had laid down that if an admission is given by the person who has signed that document, then the said document would be admissible in evidence. Section 70 of the Indian Evidence Act, 1872, reads as follows :

70. Admission of execution by party to attested document.- The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

14. The Division Bench of this Court in the case of Timmavva Dundappa Budihal v. Channava Appaya Kanasgeri AIR (35) 1948 Bom. 322 : 50 Bom. L.R. 260 has observed in para 5 as follows:

I am of opinion, observed Atkinson, J., "That 27 Cal. 190 and 38 All. 1 which decide that an admission, under Section 170, Evidence Act of 1872, to be admissible in evidence can only apply to an admission in fact made in the course of a legal proceeding then pending before a Court of Justice cannot be supported on principle or authority", (p. 516). Mr. Moropanth has also relied upon another decision of the Allahabad High Court in 44 All. 127. It is, however, clear from the report, of the judgment in the said case that the admission on which reliance was placed by the party seeking to prove the document had been made in the pleadings in the case itself and the case thus clearly fell within the scope of Section 70, Evidence Act. Even so, the learned Judges proceeded to observe that they were not prepared to hold that Section 70 is limited to an admission made in the course of a suit; but they also pointed out that it was immaterial for the purpose of the appeal to consider that question. The earlier decision of the Allahabad High Court in 38 All. was not cited and has not been considered in this case. In our opinion under Section 70 it is only if a party is shown to have made an admission about the execution of the document in the proceedings where the document is produced that proof of the attestation can be dispensed with. If the contrary view is accepted, we apprehend that it would tend to render Section 68 inapplicable to most, if not all/documents which are registered.

15. Section 70 of the Indian Evidence Act, 1872, therefore, clearly is an exception to the General Rule provided in Section 68 of the said Act. In view of this additional circumstances, I am of the view that both the Courts below were justified in coming to the conclusion that the will is properly proved. The submission of the learned Counsel appearing on behalf of the appellants, therefore, cannot be accepted. The Second Appeal is dismissed. Under the circumstances, there shall be no order as to costs.