Himachal Pradesh High Court
Banshi Ram Alias Bansi Ram And Others vs General Public And Others on 29 July, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
1 2024:HHC:6304
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO No. 243 of 2010 with
CMPMO No. 75 of 2012
Reserved on: July 16, 2024
.
Decided on: July 29, 2024
________________________________________________________
1. FAO No. 243 of 2010
Banshi Ram alias Bansi Ram and others ...... Appellants
Versus
General Public and others ....Respondents
2. CMPMO No. 75 of 2012
Bansi Ram and others ...... Petitioners
Versus
Smt. Parwatu (deleted) and others ....Respondents
________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1yes.
________________________________________________________
FAO No. 243 of 2010
For the appellants : Mr. Bhupender Gupta, Senior
Advocate with Ms. Rinki Kashmiri,
Advocate.
For the Respondents : Mr. Neeraj Sharma, Advocate, for
respondents Nos. 2, 3 and 5 to 10.
CMPMO No. 75 of 2012
For the petitioners : Mr. Bhupender Gupta, Senior
Advocate with Ms. Rinki Kashmiri,
Advocate.
For the Respondents : Mr. Neeraj Sharma, Advocate, for
respondents Nos. 1, 4, 6 and 7.
________________________________________________________
Sandeep Sharma, Judge:
Since both these cases are between the same parties and qua
the same property, as such, same were tagged together vide order
Whether the reporters of the local papers may be allowed to see the judgment?
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dated 5.10.2017 and are being disposed of vide this common
judgment.
.
2. Instant appeal filed under S. 299 of Indian Succession Act, 1905
(hereinafter, 'the Act') lays challenge to order dated 16.6.2010 passed
by learned District Judge, Bilaspur, Himachal Pradesh, whereby
Succession Act Petition No. 2/2004 having been filed by the petitioners
for grant of probate and Letter of Administration came to be dismissed.
3.
Precisely, the facts of the case as emerge from the record are
that the petitioners filed a petition under S.299 of the Act, seeking
therein grant of probate of the will executed by testator Shri Gopala,
thereby bequeathing his property in favour of the petitioners, averring
therein that the deceased Gopala, who was a Hindu, governed by
Hindu Succession Act, had died on 15.11.1997, leaving behind his
immovable property within the jurisdiction of the learned District Judge,
Bilaspur. Appellant further averred that prior to his death, Gopala had
executed a Will on 16.3.1993, which was registered in the office of Sub
Registrar, Sadar, Bilaspur, thereby bequeathing his estate in favour of
the petitioners. Petitioners claimed in the petition that the Will was
executed by the deceased Gopala, in the presence of witnesses
namely Sant Ram and Anant Ram, and the value of assets, which are
likely to come in the hands of the petitioners does not exceed
Rs.61,37,715/-.
4. Afore petition so filed by the petitioners, came to be contested
by respondents Nos. 2, 5, 6, 7, 9 and 10, who, while filing reply, took a
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specific preliminary objection with regard to maintainability and claimed
that property in Will, being ancestral one, otherwise could not be given
.
to the petitioners, by way of Will. Respondents set up a case that the
Will executed by deceased Gopala was void as he was not empowered
to execute Will, because part of Will was Nautor land, allotted to the
deceased in the year 1974. Respondents claimed that being an allottee
under Nautor Rules, deceased was not authorized to part with, dispose
of or alienate the property during the life time of his wife i.e. respondent
No.2. On merit, aforesaid respondents though admitted the factum with
regard to death of Gopala on 15.11.1997 as well as his being Hindu,
governed by Hindu Succession Act, but specifically denied that he had
executed the Will in favour of the petitioners. Aforesaid respondents
claimed that the deceased Gopala remained ill for long and petitioners
taking undue advantage of his old age, got the Will executed in their
favour, which is illegal, wrong and void and is not a genuine document.
They also set up a case that the petitioners, in connivance with
attesting witnesses got the Will executed and, at relevant time
,deceased Gopala was not in a sound disposing mind, as such, Will
executed under the influence of petitioners, cannot be acted upon,
especially, for grant of Probate and Letter of Administration.
5. By way of rejoinder, petitioners specifically refuted the
averments contained in the reply and reiterated the averments
contained in the petition.
6. On the basis of pleadings of the parties, learned court below
framed following issues on 4.11.2005:
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"1. Whether Gopala had executed the valid Will in favour of
the petitioners, if so, its effect? OPP
2. Whether the petitioners are entitled for the grant of
.
probate and letter of Administration regarding the estate
of Gopala alongwith succession certificate? OPP.
3. Whether the petition is not maintainable in the present
form? OPR.
4. Whether the property in dispute was ancestral qua
Gopala and parties to the petition, if so, its effect? OPR
5. Whether the part of the property in dispute was granted to
Goapal as Nautor land in 1979 and he could not have
alienated the property by way of Will? OPR.
6. Relief"
7.
Subsequently, on the basis of pleadings of parties and evidence
adduced on record by respective parties, learned District Judge,
Bilaspur, proceeded to dismiss the petition filed by the petitioners, for
probate of Will in question. In the aforesaid background, petitioners
have approached this Court, in the instant proceedings, praying therein
to set aside the impugned order and allow the prayer made on their
behalf for grant of probate qua Will in question.
8. I have heard learned counsel for the parties and perused the
material available on record, vis-à-vis reasoning assigned in the order
impugned in the instant proceedings.
9. Precisely, the grouse of the petitioners, as has been highlighted
in the grounds of appeal and further canvassed by Mr. Bhupender
Gupta, learned senior counsel duly assisted by Ms. Rinki Kashmiri,
Advocate is that learned District Judge, while deciding issue No.1,
acted with material illegality and irregularity. Mr. Gupta, learned senior
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counsel, while making this Court peruse the statement of PW-3, Sant
Ram, vehemently argued that once afore witness specifically admitted
.
the thumb impression of executant as well as his own signatures, there
was no occasion for learned court below to discard deposition of
aforesaid witness on account of some variations. He submitted that
there is sheer misreading of evidence, which has resulted in incorrect
conclusion causing great prejudice and injustice to the petitioners.
While referring to the affidavit executed by PW-3, Sant Ram, which
was annexed with the petition for probate, Mr. Gupta, learned senior
counsel, argued that learned court below failed to take note of the fact
that contents of aforesaid affidavit were never contradicted by said
witness, as such, version put forth by the aforesaid witness in the
affidavit to the effect that he had seen the testator affix his thumb
impression while making Will, could not have been discarded by the
Court. He submitted that requirement of S.63 of Indian Succession Act
and S.68 of Indian Evidence Act was duly fulfilled by way of material
adduced on record, hence, findings returned by learned District Judge,
being contrary to record deserve to be set aside. Mr. Gupta, learned
senior counsel further stated that learned District Judge, has fallen in
grave error in ignoring the endorsement made by Sub Registrar on
Will, Exhibit PW-2/A at the time of registration of the same. He
submitted that learned District Judge erred in law in not appreciating
that scribe of Will had already died by the time, proof of the Will was
required in the Court. However, at no point of factum execution of Will
was disputed in cross-examination by the said witness but yet Court
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below failed to consider properly the reply filed by the respondents that
execution of Will was not denied but the same was challenged on the
.
ground that the Will qua ancestral property, could not have been
executed. Lastly, Mr. Gupta, learned senior counsel argued that since
respondent No.2 had re-married, she had otherwise no locus standi to
challenge the Will.
10. While making this Court peruse the statement made by PW-2
Kartar Nath, who had identified the testator, Gopala before Sub
Registrar, when the Will was presented for registration, Mr. Gupta,
learned senior counsel vehemently argued that once aforesaid witness
specifically deposed before learned court below that executant had put
his thumb impression on the Will in his presence and he had signed the
Will as an identifier before Sub Registrar, who read over the contents
of the Will to Gopala, who admitted contents of Will to be correct,
learned court below could not have ignored the deposition made by
aforesaid witness on the pretext that he is not an attesting witness of
Will. Mr. Gupta submitted that version put forth by afore witness, if read
in conjunction with the version put forth by PW-3, there was no
occasion, if any, for learned District Judge to return a finding that the
petitioners failed to prove compliance of S.63(c) of Indian Succession
Act.
11. In support of aforesaid submissions, Mr. Gupta, placed reliance
on judgment of this Court in Smt. Kalo (Since deceased) through
legal heirs Smt. Meera Devi v. General Public and others, 2019 (6)
ILR (H.P.) 44, wherein this Court has held that Trial Court in
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appreciating statements while dismissing the petition took a hyper
technical approach, which is not the spirit of Section 63 of the Indian
.
Succession Act.
12. Further, Mr. Gupta placed reliance on case titled Kishan Ram v.
Sh. Diloo Ram and ors, Latest HLJ 2021(HP)(1)198, wherein this
court has held that an attesting witness is sufficient to strike an
inference that valid and due execution of will is done. In this case
deceased testator had scribed his thumb impressions on the Will and
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similarly, attesting witness had put his thumb impression in presence of
the deceased testator.
In case titled Jagdish Chand v. Smt. Kala Devi, Latest HLJ
2007 (HP) 649, this court while placing reliance on judgment of Hon'ble
Apex Court in Pentakosta Satyanarayan and ors. v. Pentakota
Seethanranam and ors, AIR 2005 SC 4362, held that signatures of
Registering Officer and of the identifying witnesses affixed to the
registration endorsement are sufficient attestation within the meaning
of the Indian Succession Act. It has further been held that the
endorsement of the Sub Registrar that the executants has
acknowledge before him the execution, amounts to attestation.
14. Per contra, Mr. Neeraj Sharma, learned counsel for the
respondents supported the impugned order. He submitted that bare
perusal of pleadings as well as evidence adduced on record by the
petitioners nowhere suggests that due execution of Will, qua which
probate was sought, was ever proved, as such, no illegality can be said
to have been committed by learned court below, while passing
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impugned order. He submitted that bare perusal of statement made by
PW-3 i.e. one of attesting witnesses, nowhere suggests that he as well
.
as another attesting witness namely Anant Ram, saw the executants
Gopala put his thumb impression upon the Will, rather, in examination-
in-chief, this witness categorically stated that thumb impression of the
testator on the Will was already there.
15. While making this Court, peruse the cross-examination
conducted upon this witness, Mr. Sharma, learned counsel for the
respondents submitted that the afore witness categorically stated that
when he alongwith another witness, Anant Ram went to the petition
writer, then Will, Exhibit PW-2/A had already been written and, in their
presence ,Gopala did not affix thumb impression upon the Will. PW-3,
further stated that he put his signatures upon the Will Exhibit PW-2/A
as per instructions of Shri Bansi Ram. He submitted that if the
aforesaid version put forth by PW-3 is read juxtaposing provisions
contained under S.63 of Indian Succession Act, no illegality can be
said to have been committed by learned court below, while passing
impugned order. Mr. Sharma, learned counsel for the respondent
further submitted that once there is nothing in the statement of PW-3
acknowledging the factum of putting thumb impression by executants
Gopala in his presence and in the presence of two attesting witnesses,
by no stretch of imagination, it can be concluded that the Will so
executed by the testator is in the manner as provided under S.63(c) of
Indian Succession Act.
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16. While referring to the statement made by P-4 Kartar Nath, Mr.
Sharma submitted that the version put forth by this witness was rightly
.
not taken into consideration by learned District Judge, because this
witness was not an attesting witness to the Will, rather, he had
identified the testator before Sub Registrar, who affixed his thumb
impression upon the Will in his presence.
17. In support of aforesaid submissions, Mr. Sharma, placed
reliance upon following judgments, which shall be discussed in latter
part of the judgment:
(a) (1994) 5 SCC 135
(b) (2009) 4 SCC 780
(c) (2021) 11 SCC 209
(d) 1995 (1) S.L.J. 130
(e) 2016 (3) Shim. L.C.1382
18. Before ascertaining the correctness of rival submissions made
on behalf of learned counsel for the parties vis-à-vis reasoning
assigned in the impugned order, this court deems it fit to take note of
provisions contained under S.63(c) of Indian Succession Act and S.68
of Indian Evidence Act, which read as under:
"The Indian Succession Act, 1925
Chapter III.- Of the Execution of unprivileged Wills "
63. Execution of unprivileged wills.-
(a) x x x x
(b) x x x x
(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
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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."
"THE INDIAN EVIDENCE ACT, 1872
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 its 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.]"
19. S.63(c) of the Indian Succession Act, 1925 as taken note herein
above, clearly provides that the will has to be attested by two or more
witnesses, each of whom has seen the testator sign or affix his mark
on the Will or the attesting witness must have received personal
acknowledgement from the testator of a Will, regarding putting his
signatures or mark to the Will. It is further provided in the aforesaid
provision that each of the witnesses, must have put their signatures on
the will, in the presence of testator, may be not at the same time.
20. Similarly, S.68 of the Indian Evidence Act, 1872, provides that
at least one attesting witness must be examined to prove due
execution and attestation of the Will. As per aforesaid provision of law,
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it cannot be presumed that mere signatures of attesting witnesses are
sufficient rather, they should admit that witnesses had appended their
.
signatures to the document as attesting witness, and, one of the
attesting witnesses should specifically depose that the witness had
seen the testator sign the Will and he had also put his signatures in the
presence of testator.
21. In the case at hand, precisely, the grouse of the petitioners is
that Gopala, before his death, executed Will dated 16.3.1993, thereby
bequeathing the property detailed in the Will in favour of the petitioners,
since the appellant claimed to have been given property by way of Will,
onus was upon them to prove that the deceased executed valid Will in
their favour. Apart from above, petitioners, being propounders, were
also required to satisfy the conscience of the Court about due
execution of Will.
22. In the case at hand, petitioners, with a view to prove due
execution and attestation of Will in terms of provisions contained under
S.63(c) of the Indian Succession Act, besides examining himself as
PW-1, also examined Shri Sant Ram, PW-3 i.e. attesting witness of
Will, Amar Nat (PW-2) and Kartar Nath (PW-4).
23. PW-1 Bansi Ram, deposed that the deceased Gopala had
executed Will in favour of the petitioners on 16.3.1993. If the statement
given by this witness is read in its entirety, there is nothing to suggest
that the Will was executed by Gopala, in the presence of two attesting
witnesses and testator had signed the Will in the present of said two
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attesting witnesses, who had also signed the Will, in the presence of
the testator.
.
24. Leaving everything aside, perusal of Exhibit PW-2/A does not
suggest that the same bears signatures of PW-1 and, in these
circumstances, version of this witness rightly was not taken into
consideration by learned court below, while ascertaining correctness of
the claim of the petitioners with regard to valid execution of the Will. As
per pleadings, Sant Ram and Anant Ram had actually signed the Will
as attesting witnesses. To prove execution of the Will, petitioners
summoned PW-3 Sant Ram, who deposed that the deceased, in the
presence of Anant Ram got the Will scribed. He deposed that the
Scribe scribed the Will as per instructions of Gopala. He alongwith
Anant Ram signed the will in the presence of testator (Exhibit PW-3/A).
He deposed that Gopala was mentally sound at the time of execution
of the Will. This witness specifically deposed that Gopala had not
affixed his thumb impression upon the Will, in his presence. In his
examination-in-chief, this witness deposed that thumb impression upon
the Will was already there but in his cross-examination, this witness
deposed that he alongwith Anant Ram, came to the Petition Writer, but
by that time, Exhibit PW-2/A had been already written and, in their
presence, Gopala did not put his thumb impression on the Will and he
had also put his signatures upon Exhibit PW-2/A, as per instructions of
Bansi Ram, PW-1.
25. Similarly, this witness also deposed that Gopala was quite old
and he had no talk with Gopala on the given date nor did he (Gopala)
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tell anything to them about the Will. He deposed that Bansi Ram PW-1
was known to him and he signed the Will at his instance and
.
instructions.
26. No doubt, if version given by aforesaid witness is read in its
entirety, he stated that aforesaid witness had signed the Will, Exhibit
PW-2/A alongwith another person Anant Ram in the presence of
testator but it also emerges from his statement that neither testator
acknowledged the contents of the Will to be correct in the presence of
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these witnesses, nor affixed his thumb impression upon the Will in the
presence of these witnesses or another attesting witness, Anant Ram.
Similarly, there is nothing in the statement of afore witnesses
from where it can be inferred that deceased acknowledged his
signature in the presence of two attesting witnesses.
28. Having read the deposition made by aforesaid attesting
witnesses, this Court finds no reason to disagree with the finding
returned by learned District Judge, Bilaspur that due execution and
attestation as per S.63(c) of Indian Succession Act, cannot be said to
have been established on record.
29. Version put forth by PW-2, Amar Nath is not of much relevance
for the reason that he only deposed that Will, Exhibit PW-2/A was
scribed by Harbans Singh, Petition Writer, who has died and he was
conversant with the handwriting of Harbans Singh. He deposed that the
Will, Exhibit PW-2/A was in the hands of said Petition Writer and bears
his signatures. In his cross-examination, this witness deposed that
Exhibit PW-2/A was neither scribed by him nor same was scribed in his
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presence. Since this witness is not the scribe of the Will, rather is
merely a witness of execution of the Will, his deposition was rightly not
.
taken into consideration by learned court below, while ascertaining the
factum with regard to compliance of provisions contained under S.63(c)
of the Indian Succession Act.
30. Similarly, this Court finds that Kartar Nath PW-4, deposed that
he identified the testator Gopala, before Sub Registrar, when the Will
was presented for its registration. This witness deposed that in his
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presence, testator had affixed his thumb impression upon the Will and
he had signed the Will as an identifier before Sub Registrar.
Though, this witness categorically stated that the Sub Registrar
read over the contents of the Will to Gopala and Gopala admitted the
same to be correct, but such version may not be of much help to the
petitioners, especially when said witness is not an attesting witness,
rather is only an identifier.
32. Though, Mr. Gupta, learned senior counsel representing the
petitioners, while placing reliance upon aforesaid witnesses, attempted
to carve out a case that the aforesaid witness can be treated as one of
the attesting witnesses, for the reason that he had seen the testator
sign the Will, before the Sub Registrar but this Court is not persuaded
to agree with Mr. Gupta, learned senior counsel, for the reason that
specific provision has been made in S.63(c) of the Indian Succession
Act, to prove execution of the Will. As per S.63(c) of the Act ibid, Will
should be signed by two or more attesting witnesses.
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33. Though, both the witnesses are not required to be present
simultaneously at the time and put their signatures but they must have
.
seen the testator sign or affix his mark on the Will, or they must have
received from the testator personal acknowledge of putting his
signature or mark on the Will.
34. In the case at hand ,attesting witnesses were Sant Ram and
Anant Ram. With a view to prove valid execution of the Will, petitioners
chose to examine Sant Ram PW-3, who categorically stated that he or
Anant Ram never saw the testator sign or put his mark upon the Will,
in their presence rather, in his examination-in-chief, he categorically
stated that thumb impression on the Will was already there.
35. At this stage, it would be relevant to take note of the fact that
attesting witness and identifier are two separate persons.
36. In Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135, Hon'ble
Apex Court held as under:
"5. It is required to be seen as to whether the requirements
of Section 63 of the Indian Succession Act and Section 68 of the
Indian Evidence Act had been satisfied when the High Court
took the exercise of examining the evidence and interfered in
the finding. The approach of the High Court one may say, may
not be wholly unjustified, but regrettably we have to say that the
result achieved was wholly undesirable. This is evident from the
judgment itself where extracts of evidence have been
reproduced. In the first instance, Nachhattar Singh (DW 1) one
of the attesting witnesses when examined in court stated in his
examination-in-chief to the effect :
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"The contents of the will were read over to Bachan Singh
and he after admitting the same to be correct, put his
signature in the presence of Jagtar Singh and me. I and
Jagtar Singh put our signatures thereon in his presence."
.
While in cross-examination he went back on that plea and stated
"The will, Exh. D-1 was scribed before my arrival and I put my
signatures thereon at the instance of the defendant (the
legatee). Neither Bachan Singh nor the defendant and any other
witness had put his signature on Exh. D-1. I had also not put my
signature on Exh. D-1 in the presence of Bachan Singh."
6. As is apparent he contradicted himself towards due
execution of the will. The other witness Jagtar Singh, Lambardar
(DW 2) stated in his examination-in-chief to the effect :
"The contents of the will were read over to Bachan Singh
and who after admitting the same to be correct put his
signatures in the presence of Nachhattar Singh and me
and I and Nachhattar Singh had put our signatures in his
presence."
In cross-examination, however, he turned turtle and said "The
will was already got scribed before my arrival. Bachan Singh
and other witness had already put their signatures on Exh. D/1
before my arrival. I had put my signatures on reaching there."
7. This witness too contradicted his earlier statement.
Should the evidence of these two witnesses be discarded, as it
is capable of being discarded, then due execution of the will
cannot be said to have been proved. The endorsement Ex. D-
1/A made by the Sub-Registrar, Gyan Chand Jain, DW 3 to the
effect that the endorsement D-1/A was made in his presence
and in the presence of the witnesses and that the witnesses
signed the said endorsement in the presence of Bachan Singh
does not satisfy the requirements of Section 63 of the Indian
Succession Act and does not reach up to the level of proof as
required under Section 68 of the Indian Evidence Act. Therefore,
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the mere registration of will said to have been executed by
Bachan Singh is of no consequence."
.
37. In Yuminam Ongbi Tampha Ibema Devi v. Yuminam
Joykumar Singh, (2009) 4 SCC 780, Hon'ble Apex Court held as
under:
"It is to be noted that the trial court did not even record any
reason for coming to the conclusions as done. No issue was
framed regarding the validity of the will. The evidence of PW2
does not in any way support the claim of due execution and
attestation of the will. On the contrary, it clearly establishes that
he did not sign in his presence, he did not know what was the
nature of the document. There was no attesting witness who has
signed in his presence and, therefore, the requirements
of Section 68 of the Evidence Act have to be complied with in
order to show that the two persons who claimed to have signed
as attesting witness can be really treated as attesting witnesses.
Above being the position, we find no merit in this appeal which is
accordingly dismissed."
38. In Kavita Kanwar v. Pamela Mehta (2021) 11 SCC 209,
Hon'ble Apex Court, while dealing with principles governing
adjudicatory process concerning proof of Will, held as under:
"24.6. In the case of Mahesh Kumar (supra), this Court indicated
the error of approach on the part of the High Court while
appreciating the evidence relating to the Will as follows:-
"44. The issue which remains to be examined is whether
the High Court was justified in coming to the conclusion
that the execution of the will dated 10-2-1992 was
shrouded with suspicion and the appellant failed to dispel
the suspicion? At the outset, we deem it necessary to
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observe that the learned Single Judge misread the
statement of Sobhag Chand (DW3) and recorded
something which does not appear in his statement. While
Sobhag Chand categorically stated that he had signed as
.
the witness after Shri Harishankar had signed the will, the
portion of his statement extracted in the impugned
judgment gives an impression that the witnesses had
signed even before the executant had signed the will.
45. Another patent error committed by the learned Single
Judge is that he decided the issue relating to validity of
the will by assuming that both the attesting witnesses
were required to append their signatures simultaneously.
Section 63(c) of the 1925 Act does not contain any such
requirement and it is settled law that examination of one
of the attesting witnesses is sufficient. Not only this, while
recording an adverse finding on this issue, the learned
Single Judge omitted to consider the categorical
statements made by DW 3 and DW 4 that the testator
had read out and signed the will in their presence and
thereafter they had appended their signatures.
46. The other reasons enumerated by the learned Single
Judge for holding that the execution of will was highly
suspicious are based on mere surmises/conjectures. The
observation of the learned Single Judge that the
possibility of obtaining signatures of Shri Harishankar and
attesting witnesses on blank paper and preparation of the
draft by Shri S.K. Agarwal, Advocate on pre-signed
papers does not find even a semblance of support from
the pleadings and evidence of the parties. If Respondent
1 wanted to show that the will was drafted by the
advocate after Shri Harishankar and attesting witnesses
had signed blank papers, he could have examined or at
least summoned Shri S.K. Agarwal, Advocate, who had
represented him before the Board of Revenue. ....."
39. In Smt. Punni vs. Sumer Chand and others, 1995 (1) S.L.J.
130, this court, while dealing with requirement of S.63 of Indian
Succession Act, held as under:
"Prima facie, on document Ex. PB, the capacity of Mr. Shah is
shown as scribe. The signatures are not for the purpose of
attesting or certifying that Mr. Shah had received from the
testator, namely, Mr. Saudagar the executant, a personal
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acknowledgment of his thumb impression or that he had seen
Saudhagar putting his thumb impression on the document. As
such, only Sadhu Ram and Inder Singh, who, prima facie are
.
shown to be the witnesses, have to be regarded as attesting
witnesses and not Mr. Shah. As will be noticed shortly,
statement of Sadhu Ram PW 2 cannot be considered to be
sufficient discharge of onus by the plaintiffs that requirement
of Section 63 of the Indian Succession Act are met with. Sadhu
Ram in his statement has not made any reference to Inder
Singh and there are circumstances on record doubting the
presence of Inder Singh at the time when Sadhu Ram is stated
to have put his signature on the Will. The entire Will is typed
one. The name of Mr. T.S. Shah as a scribe, that of Saudagar
as executant and of Sadhu Ram Lambardar as a witness are
duly typed out. Sadhu Ram has put his signature below his
description as an attesting witness. The entire description is in
type but the description of the other witness, Inder Singh is in
hand and not typewritten. No reason is forthcoming as to why
the witness Inder Singh, in case he was present at the time
when the will was scribed that his description was also not typed
out like that of Sadhu Ram. Mr. T.S. Shah had not himself typed
out the document. The name of the person typing the Will is also
not shown. According to Mr. Shah, it was one Mr. Gupta,
petition-writer, who had typed out the Will. As per the usual
practice, the petition-writer should have made endorsement on
the document with regard to his having typed the same but no
such endorsement is appearing on the document. The
circumstance that the description of Mr. Inder Singh is in hand
and is not typed out, whereas it is typed out for Mr. Shah and
Sadhu Ram itself leads to an inference that Inder Singh was not
present at the time when the document was typed out, scribed
or thereafter when Mr. Shah or Sadhu Ram put their signatures.
Sadhu Ram only states that the will, Ex. PB was scribed by
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Tarlochan Singh in Tehsil office at the behest of Saudagar. After
the same had been typed out, it was read over and after
admitting the contents of the same to be true, Saudagar put his
.
thumb impression and he had also signed the same as a
witness. Neither any question was put to him, nor he has stated
that either Mr. Shah or Mr. Inder Singh had put their signatures
in his presence or in the presence of the testator. The statement
of Mr. Shah is to the effect that after the Will had been typed out
and read over, Saudagar had put his thumb impression on the
same, whereafter, Sadhu Ram and Inder Singh put their
signatures and it is not shown by this witness that whether Inder
Singh or Sadhu Ram put their respective signatures in the
presence of the testator or in his presence. Assuming that
Sadhu Ram put his signature in the presence of this witness, it
is neither shown nor it is clear from the statement of Mr. Shah
that Inder Singh also put his signatures in his presence and in
the presence of the testator. Thus it has to be held that the
plaintiffs have failed to prove the compliance of Section 63 of the
Indian Succession Act in the absence of which there is no other
conclusion possible except to hold that the due execution of the
Will Ex. PB by Saudagar is not proved. The other question
raised by the learned counsel for the defendant-appellant that
the execution of the Will Ex. PB is shrouded by suspicious
circumstances, which have also not been dispelled, need not be
considered except by making reference to one important
aspect."
40. In Narotam v. Laxmi Devi, 2016 (3) Shim. LC 1382, this Court
held as under:
"31. This Court has similarly held in Smt. Punni Vs. Sumer
Chand and others, AIR 1995 Himachal Pradesh 74, as under:-
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"10. Section 59 of the Indian Succession Act deals with the
testator's testamentary capacity. Section 63 lays down certain
formalities, which are required to be observed in the execution
.
and attestation of the Will. For the purpose of decision in this
appeal, Section 63 of the Indian Succession Act is relevant,
which is reproduced hereunder:-
"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 a effect to the
writing as a will. (c) The will shall he 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,"
11. As regards attestation, Clause (c) aforementioned
requires that the Will shall be attested by two or more witnesses.
It is not necessary that both of them be present simultaneously
at the time of putting their signatures but the requirement is that
each of the attesting witness must have seen the testator sign or
affix his mark to the Will or has received from the testator a
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personal acknowledgment of his signature or mark on the Will.
There is also an additional requirement that each of the attesting
witness shall also sign the Will in the presence of the testator. In
.
Girja Datt Singh v. Gangotri Datt Singh, AIR 1955 SC 346, it
was held that in order to prove the due attestation of the will the
propouder of the will has to prove that the two attesting
witnesses saw the testatory sign the will and that they
themselves signed the same in the presence of the testator. As
regards the proof and attestation, reference was made to
Section 68 of the Evidence Act and it was held this it is
necessary to comply with the provisions of the Evidence Act to
prove the due execution and attestation of the Will by calling at
least one attesting witness in case he is alive and one cannot
presume from the mere signatures appearing at the foot of the
endorsement of registration or at the foot of the document that
the witnesses had appended their signatures to the documents
as attesting witnesses. On the proof of a Will, onus of proof as
also the nature of evidence required to be led, in H.
Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC
443, it was held that (at pp. 451 and 452 of AIR):
"... It would prima facie be true to say that the will has to
be proved like any other document except as to the
special requirements of attestation prescribed by Section
63 of the Indian Succession Act. As in the case of proof
of other documents so in the case of proof of wills it
would be idle to expect proof with mathematical certainty.
The test to be applied would be the usual test of the
satisfaction of the prudent mind in such matters.
However, there is one important feature which
distinguishes wills from other documents. Unlike other
documents the will speaks from the death of the testator,
and so, when it is propounded or produced before a
Court, the testator who has already departed the world
cannot say whether it is his will or not; and this aspect
naturally introduces an element of solemnity in the
decision of the question as to whether the document
propounded is proved to be the last will and testament of
the departed testator. Even so, in dealing with the proof
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of wills the court will start on the same enquiry as in the
case of the proof of documents. The propounder would
be called upon to show by satisfactory evidence that the
will was signed by the testator, that the testator at the
.
relevant time was in a sound and disposing state of mind,
that he understood the nature and effect of the
dispositions and put his signature to the document of his
own free will. Ordinarily, when the evidence adduced in
support of the will is disinterested, satisfactory and
sufficient to prove the sound and disposing state of the
testator's mind and his signature as required by law,
courts would be justified in making a finding in favour of
the propounder. In other words, the onus on the
propounder can be taken to be discharged on proof of the
essential facts just indicated."
12.
The court also dealt with the requirement, which a
propounder has to comply, namely, leading, sufficient and
cogent evidence in dispelling any suspicious circumstances
attending the due execution of the Will, which need not be
reiterated here. Out of the tests, on which emphasis was laid on
the determination of the question as to whether a testament
produced before the court is or is not the last Will of the testator,
is the full and solemn satisfaction that it has been validly
executed by the testator, who is no longer alive. Reiterating that
no hard and fast or inflexible rules can be laid down for the
appreciation of evidence, it was observed that (AIR 1959 SC
443 at p. 452):
".... a propounder of the will has. to prove the due and valid
execution of the will and that if there are any suspicious
circumstances surrounding the execution of the will the
propounder must remove the said suspicions from the mind of
the court by cogent and satisfactory evidence. It is hardly
necessary to add that the result of the application of these two
general and broad principles would always depend upon the
facts and circumstances of each case and on the nature and
quality of the evidence adduced by the parties. It is quite true
that, as observed by Lord Du Pared in Harmes v. Hinkson,
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(1946) 50 Cal WN 895 : AIR 1946 PC 156 'where a will is
charged with suspicion, the rules enjoin a reasonable
scepticism, not an abdurate persistence in disbelief. They do not
.
demand from the Judge, even in circumstances of grave
suspicion, a resolute and impenetrable incredulity. He is never
required to close his mind to the truth'. It would sound
platitudinous to say so, but it is nevertheless true that in
discovering truth even in the such cases the judicial mind must
always be open though vigilent, cautious and circumspect."
32. When we apply the ratio of the above mentioned judgments
keeping in view the facts of the present case, the only
conclusion which can be drawn is that both the learned Courts
below have rightly come to the conclusion that there was no
valid Will executed by deceased Chhitru.
41. Having taken note of the aforesaid exposition of law, coupled
with the provisions contained under S.63 of Indian Succession Act, this
court finds that the propounder of the Will can only prove valid
execution of Will by examining at least one of the attesting witnesses,
who should have seen the testator sign or affix his mark to the Will or
must have received from the testator, personal acknowledgement of
putting signature or mark on the Will. Apart from above, there is an
additional requirement that each of attesting witnesses shall also sign
the Will in the presence of the testator. No doubt, as per S.68 of the
Indian Evidence Act, propounder can examine only one attesting
witness but such witness should categorically state that the testator
had signed or affixed his mark to the Will in his presence or he had
received a personal acknowledgement from the testator of his
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signatures or mark on the Will. It is also apparent from bare perusal of
S.63 of Indian Succession Act as well as law taken into consideration
.
that the identifier, who allegedly identifies a testator at the time of
attestation of Will, cannot substitute an attesting witness, whose
statement is of utmost importance to prove valid execution of Will, in
terms of S.63 of Indian Succession Act.
42. Consequently, in view of the detailed discussion made supra
and law taken into consideration, this Court finds no illegality or
infirmity in order dated 16.6.2010 passed by learned District Judge,
Bilaspur, Himachal Pradesh whereby Succession Act Petition No.
2/2004 and same is upheld, as result whereof, the appeal fails and is
accordingly dismissed. All pending applications also stand disposed of.
Interim directions, if any, also stand vacated.
43. Though, by way of instant petition filed under Art. 227 of the
Constitution of India, petitioners have sought quashing of order dated
17.12.2011 passed by learned District Judge, Bilaspur, Himachal
Pradesh in Civil Misc. Petition No. 400-6 of 2011 in Land Reference
Petition No.8 of 2004 with further direction to learned reference court to
proceed with the reference petition on merit, however, since the
accompanying appeal stands dismissed by this Court, as such, learned
counsel for the petitioners fairly states that the present petition has
been rendered infructuous and same may be dismissed accordingly.
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44. In view of the aforesaid fair submission made by learned
counsel for the petitioners, present petition is also dismissed as having
.
been rendered infructuous.
Pending applications, if any, stand disposed of. Interim
directions, if any, stand disposed of. Record, if received, be sent back
forthwith.
(Sandeep Sharma)
Judge
July 29, 2024
(vikrant)
