Hari Narayan Khedkar (Deceased) ... vs Pandurang Through L.Rs. ...
2003 Latest Caselaw 512 Bom

JUDGMENT

1. This is a Second Appeal filed by the original defendants. The original plaintiffs filed a suit for partition in respect of an area admeasuring 2 acres and 7 gunthas which was in possession of the appellant defendant No. 1. The case of the plaintiff is that the plaintiffs and the defendant No. 1 are the real brothers whereas defendant No. 2 was the proposed purchaser of the suit land. On 15-2-1968 there was a partition whereby three brothers and Narayan each were allotted 1/4th share in respect of the total property as well each one was in possession of 3 acres and 7 gunthas.

2. It is the further case of the plaintiffs that Narayan disposed of one acre land to the appellant/defendant No. 1 during his life time. Remaining land admeasuring 2 acres and 7 gunthas remained in possession of Narayan till his death. The original plaintiff, respondent No. 1 herein Pandurang and brother vithhal after the death of Narayan claimed 1/3rd share in the said 2 acres and 7 gunthas land. Accordingly, the appellant/defendant No. 1 was served with the Notice on 1-7-1978 to partition this land and to allot 1/3rd share to the original plaintiff. According to the plaintiff and the defendant No. 2, each was entitled to claim 0.29 gunthas of land as their share.

3. The appellant/defendant No. 1 filed his written statement and he admitted that the suit property was ancestral property. He also admitted that there was a partition by Narayan on 15-2-1968 and each coparcener was allotted a share of 3 acres and 7 gunthas. It was his case, however, that Narayan executed a Will on the basis of which he bequeathed the suit property in his favour. The case of the appellant was that after the death of Narayan, the property and its ownership vested in him under the Will dtd. 20-7-1970. He also claimed alternatively that if the plaintiff's claim regarding his share to the extent of 0.29 gunthas is accepted, then the property cannot be partitioned since it was constituted a fragment under the Fragmentation Act.

4. The defendant No. 2 is the proposed purchaser of the suit land. He has also filed his written statement and denied any contract about the suit land with defendant No. 1.

5. The trial Court framed issues. The plaintiff, however, did not lead evidence. Defendant No. 1 led oral and documentary evidence to prove the execution of the Will dtd. 20-7-1970 in his favour by deceased Narayan. The trial Court held that deceased Narayan had executed a Will dtd. 20-7-1970 in favour of defendant No. 1 as such he became the owner of the suit property under the said Will and, therefore, the plaintiffs had no right to claim any share in the property. The original plaintiffs preferred an appeal in the Court of Additional District Judge. The plaintiff No. 2 died intestate and, therefore, his name was deleted.

6. The lower appellate Court held that the defendant No. 1 appellant herein had not proved that the Will in question was the last Will executed by deceased Narayan and further held that the Will was not executed and attested in the manner required under Section 63 of the Indian Succession Act and, therefore, held that the Will was not proved. The lower appellate Court therefore, allowed the appeal and set aside the Judgment and Order of the trial Court.

7. The Second Appeal was admitted on 11-2-1994.

8. Though the substantial question of law was not framed at the time of admitting the appeal specific grounds have been framed in the Memo of Appeal and in my view ground Nos. 1 and 2 are substantial questions of law. The substantial question of law, therefore, is whether the lower Court could give a finding in respect of the averments made by the plaintiffs in the plaint in respect of a specific document though no evidence is led by the plaintiffs by entering into witness box and whether the Court was justified in not relying on the Will which is otherwise proved as per the provisions of Section 63 of The Indian Succession Act read with Section 68 of the Indian Evidence Act only on the ground that the propounder of the Will has not proved that the said Will was the last Will when no such case was made out in the pleadings by both the parties.

9. I have heard the learned counsel appearing on behalf of the appellants and respondents.

10. The trial Court in the present case held that the document Exh.16 which was produced by the appellant/defendant No. 1 was a Will. The said finding was given after examining the contents of the said document and also after considering the construction of the said document the trial Court arrived at a specific finding that the said document was a Will whereby Narayan father of the defendant No. 1 had bequeathed the suit property to him. The trial Court also after examining the evidence of defendant No. I and other witnesses which were examined by him came to the conclusion that the Will was properly proved. In order to prove the Will, defendant No. 1 had examined an attesting witness who has clearly stated that Narayan an executor of the Will had executed the same in his presence and that he had also signed the document. This fact has been proved by Madhukar (D.W. 2) who has in specific terms stated that the father of defendant No. 1 had expressed his desire to bequeath the suit field to Haribhau, He also has mentioned that Narayan Joshi had prepared the document in his own hand writing and that thereafter Narayan had signed the document in his presence. He has also mentioned that Jagdeo also signed the document thereafter. The document was shown to him and he has stated that it had his signature, signature of Narayan and Jagdeo. It is submitted by the learned counsel appearing on behalf of the plaintiff respondent No. 1 herein that the said witness D.W.2 Madhukar has not stated that Narayan had seen them signing the said document. The relevant portion of the deposition is as follows :

"The father of Haribhau expressed his desire to bequeathed the suit field to Haribhau. Narayan Joshi scribed the document. I was send over Narayan s/o Kisan. Thereafter Narayan Kisan signed on that document in my presence. Then Jagdeo and I signed on that document. Jagdeo and I had seen Narayan Kisan making signature on that document."

11. It is submitted that the said evidence does not disclose that Narayan had seen both the attesting witnesses signing the said document and, therefore, it is submitted that the mandatory provisions of Section 63 of the Indian Succession Act, have not been complied with and, therefore, the lower appellate Court was justified in holding that the said document does not properly proved.

12. Section 63 of the Indian Succession Act reads as follows :

"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."    
 

 13. Section 68 of the Indian Evidence Act lays down the procedure and the manner in which the document is required by any statute to be attested should be proved. It lays down the manner in which it should be done. Section 68 of the Indian Evidence Act reads as follows :  

"68. Proof of execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving the execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. (Provided that it shall not be 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, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

14. In my view on careful perusal of Sections 63 and 68 of the said Acts as above, both the provisions have been complied with inasmuch as one of the attesting witness has been examined who specifically mentioned that he had seen the testator Narayan signing the said Will in his presence. He also has stated that the testator had expressed his desire to bequeath the property to defendant No. 1. He also gives the order and sequence in which the document was executed. He has mentioned that initially the testator Narayan singed, then Jagdeo and he signed the document. Thus, the sequence of signing has been given. The contention of the learned counsel appearing on behalf of the plaintiff respondent No. 1 herein that Narayan had not seen the attesting witness signing the document in his presence cannot be accepted because the witness has stated the sequence in which the document was singed. Thus, the presence of Narayan at the time of attestation by the witness is very clear from the oral evidence of the said witness.

15. In order to ensure that there is compliance of the provisions of the said sections, it is not necessary that the witness who enters into the witness box should use exact words which are there in the section. The Court while appreciating the evidence has to see the context in which the statement is made. In my view, therefore, the submissions made by the learned counsel appearing on behalf of the plaintiff that the witness has not stated that Narayan had not seen him signing the document can not be accepted. The lower appellate Court therefore, patently erred in holding that the document is not proved.

16. The lower appellate Court had come to the conclusion that the appellant/defendant No. 1 has not proved that the said Will was the last Will. He further held that the burden of proving the fact that the Will produced was the last Will of the testator was on the propounder of the Will. He held that this fact has not established particularly when deceased Narayan on 15-2-1968 had executed the registered Will in favour of the plaintiff Pandurang. The lower appellate Court further came to the conclusion that under the Will at Exh.16 there was no reference that the Will which was executed in favour of Pandurang was revoked or resiled.

17. In my view, this finding of the lower appellate Court cannot be accepted. It is an admitted position that the plaintiff in his plaint has come out with a specific case in para 7 of his plaint that his father Narayan had executed a registered Will on 15-2-1968 in his favour and as a result the property was bequeathed to him. It is further admitted in respect of this specified averments in the plaint that the plaintiff did not enter into the witness box though he had filed a copy of the said Will dtd. 15-2-1968 on record. Thus, this document dtd. 15-2-1968 was not proved by the plaintiff in the manner provided under Section 63 of the Indian Succession Act and 68 of the Indian Evidence Act. In spite of that the lower appellate Court has relied on the said document and on that basis has given the aforesaid findings. In my view, this finding cannot be sustained. The defendant No. 1 on the contrary, has entered into witness box and has also examined another witness to prove the execution of the Will.

18. The learned counsel appearing on behalf of the plaintiff further submitted that Exh.16 could not be construed as a Will as it has been described as a receipt. It is submitted that the trial Court therefore, clearly erred in coming to the conclusion that the said document Exh.16 was a Will. In support of his submission, he relied upon the judgment of the Apex Court in the case Navneet Lal alias Rangi v. Gokul and Ors., wherein the Apex Court laid down the guidelines after considering the earlier decisions in para 8 which are as under :

"From the earlier decisions of this Court the following principles, inter alia, are well established :--

(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. Ram Gopal v. Nand Lal, .

(2) In construing the language of the Will the Court is entitled to put itself into the testator's armchair, Venkata Narasimha v. Parthasarathy, (1913) 41 Ind App. 51 at p. 75(PC) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense.... But all this is solely as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular testator in that document, Venkata Narasimhas's case (supra) and Ghanmbal Ammal v. T. Raju Ayyar, .

(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory, Raj Bajrang Bahadur Singh v. Bakhtra Kuer, .

(4) The Court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The Court will look at the circumstances under which the testator makes his Will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. Pearey Lal v. Rameskwar Das, .

(5) It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the Will. (Ramachandra Shenoy v. Mrs. Hilda Brite )."

19. There cannot be any dispute regarding the ratio laid down by the Apex Court in the said judgment. However, in my view, the said Judgment cannot be of any assistance to the plaintiff. It is a settled position in law that it is not necessary that the Will should be in a particular form. The provisions of the Succession Act clearly lay down that it is not a requirement in law that the Will should be specifically worded or that it should be termed as such. A consistent view which has been taken by the Apex Court is that the intention of the parties has to be taken into consideration including the surrounding circumstances, family relationship, the probability in respect of the use of words used in the particular manner. In the instant case it has come on record that deceased Narayan the father of the appellant herein after partition in 1968 was residing with the appellant and he had, out of his share of 3 acres and 7 gunthas land, sold one acre to the appellant during his lifetime. He continued to stay with him till his death. There was ah altercation between the plaintiff and Narayan and this fact has also come on record. Though the said document is termed as a Will, the intention of the parties is very clear. The trial Court has given a finding of fact after appreciating the evidence that the said document is a Will. The lower appellate Court also has not stated that the said document is not a Will. Even in this view of the matter while exercising the jurisdiction under Section 100 of the Code of Civil Procedure, the said finding cannot be set aside by re-appreciating the evidence.

20. That during the pendency of the case one of the brother Vithhal has died intestate and the heirs of even Pandurang and appellant have expired and the heirs of the appellant and respondent No. 1 are brought on record.

21. In my view, therefore, the Judgment and Order passed by the lower appellate Court will have to be quashed and set aside. The Second Appeal is allowed. Under the circumstances, there shall be no order as to costs.