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CASE NO.:

Writ Petition (civil) 3467 of 2003

PETITIONER:

Benga Behera & Anr

RESPONDENT:

Braja Kishore Nanda & Ors

DATE OF JUDGMENT: 15/05/2007

BENCH:

S.B. Sinha & Markandey Katju

JUDGMENT:

JUDGMENT

S.B. SINHA, J.:

1. Interpretation and application of Section 63 of the Indian Succession Act,

1925 as well as Section 68 of the Indian Evidence Act, 1872 vis-`-vis the

requirements of proof of execution of a document falls for consideration in this

appeal which arises out of the judgment dated 21.11.2002 in First

Appeal.No.397/1990 of the High Court of Orissa at Cuttack. However, before we

embark upon the said question, we may notice the facts of the matter in brief.

2. Admittedly, one Sarajumani Dasi was the owner of the property in question.

She was aged about 70 years when a Will was allegedly executed by her on or

about 15.1.1982. She expired on 5.6.1983. The beneficiary of the Will was the

first respondent herein. The testatrix was living in a math known as Bharati Math

at Puri. In the Will, she disclosed her profession to be "Singer of Bhajans and

Kirtans". It is not in dispute that the first respondent was a complete stranger to the

family. He is a businessman. His father was one of the disciples of late Taponidhi

Ramakrushna Bharati Goswamy, who had founded the Math wherein the testatrix

was living.

3. A deed of sale was also executed by the said Sarajumani Dasi in favour of

advocate Surendra Panda of Puri on the same day. The Will is said to have been

scribed by one Banabehari Upadhyaya (PW-9), an advocate's clerk. He as well as

one Chandramani Das Mohapatra who are said to be the attesting witnesses thereto

also identified the testatrix before the Registering Officer. Respondent No.1

obtained the original Will from the Office of the Registering Authority on

30.1.1982.

4. As noticed hereinbefore, Sarajumani Dasi expired on 5.6.1983. In 1986, an

application was filed by the first respondent in the court of the learned District

Judge, Puri for grant of Letters of Administration in respect of the alleged Will

with a copy of the Will annexed, in terms of Section 278 of the Indian Succession

Act. Respondent No.1 claimed that he had also been residing in the said Math. She

was assured of proper care by him and in consideration of the help and assistance

rendered to her by respondent No.1, the said Will was executed in his favour.

5. Appellants herein are the heirs and legal representatives of the testatrix.

They contested the said application, inter alia, questioning execution of the Will

alleging the same to be a forged and a sham document.

6. We may notice that the original Will was never produced by the appellant.

7. Execution of the Will was sought to be proved by producing a certified copy

thereof. A purported xeroxed copy of the said will was also filed. The registration

of the said Will was sought to be proved by calling the document in question

wherein the contents of the document registered were noted.

8. To prove execution and attestation of the Will, the respondent No.1, inter

alia, examined Banabehari Upadhyaya (P.W.9), Purnchandra Rath (P.W.4) and

Surendra Panda (P.W.7).

9. We will notice their statements before the learned District Judge for

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determining the question as to whether requirements of law had been complied

with.

10. P.W.9- Banabehari Upadhyaya who, as noticed hereinbefore, not only

scribed the Will but also stated himself to be an attesting witness and identifier of

the testatrix, in his deposition stated as under:

" \005. On 15.1.82, Sarajumani Dasi executed a Will in favour of

one Brajakishore Nanda and the same was scribed by me\005..

I do not remember anything that happened on 15.1.82 except

what I have deposed with reference to the document.

I first saw Sarajumani Dasi when she executed the sale deed. I

did not know her before that. \005\005 Surendranath Panda brought

Sarajumani Dasi to me with him. Sarajumani Dasi was with

Surendranath Panda and I was called to scribe the Will to become an

identifying witness and also an attesting witness. Surendra Panda

identified Sarajumani Dasi to me and that is how I know her. \005. I did

not make a draft of the Will but scribed it as per dictation of

Surendranath Panda. Sarajumani Dasi did not put her L.T.I. in my

presence on the Will at the time of execution of it. \005. I attested her

L.T.I. before she put her L.T.I. on the sale deed and the Will.

Sarajumani Dasi was not present when I scribed the sale deed and will

and made the endorsements attesting her L.T.I. I do not know if any

other person attested the Will and the sale deed. \005

\005 \005 \005

\005 I scribed whatever was dictated by Sri Panda without

understanding the meaning or purport. \005. I did not disclose before

the Sub-Registrar or before any body that I identified Sarjumani Dasi

without knowing her or attested her L.T.I. even though her L.T.I. were

not affixed in my presence. \005\005\005."

11. In his deposition, P.W.4-Purnachandra Rath (An Advocate) stated:

"Thereafter on 15.1.82, Sarajumani again came to the Bar

Association and met me there. Brajakishore Nanda (P.W.1 - Plaintiff)

and his father Sanmajaya Nanda (not examined) accompanied the

Mata. She expressed before me that she would execute the Will and

also the sale deed. On her instruction, I made a gist of the Will and

asked Banabehari Upadhyaya to scribe the same. \005.. The scribe read

over and explained the contents of the Will to Sarajumani and she

acknowledged the same to be true and correct. When Sarajumani

affixed her L.T.I. on the Will, myself, Banabehari Upadhyaya,

(P.W.9) advocate Sri Surendra Panda and Chandramani Das

Mohapatra and Sanmajaya Nanda were present\005..

I am attesting witness to the will. \005\005.. I endorsed a certificate

in the Will to the effect that the executant was my client and the Will

was written by my clerk in my office on my direction. \005\005"

12. In his deposition, P.W.7-Surendra Panda (An Advocate) stated thus:

"On 15.1.82, Sarajumani Dashi came to the Bar Association,

Bhubaneswar. She was accompanied by Brajakishore Nanda and

Jammajjaya Nanda at that time. That day i.e.15.1.82 Sarajumani

Dashi expressed her desire before her lawyer Purnchandra Rath

(P.W.4) to execute the Will in favour of Brajakishore Nanda. \005

Then the lawyer made a rough draft of the Will. Mr. Rath called

Benabehari Upadhyaya to scribe the Will. \005 The contents of the

document were read and explained to Sarajumani Dashi. \005..

Sarajumani Dashi acknowledged the contents of the document to

be true and correct and gave her L.T.I.. thereon. Attesting witness

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P.C. Rath, Chandramani and Banabehari Upadhaya were present

when Sarajumani Dashi affixed her L.T.I. on the Will. \005."

13. P.W.9- Banabehari Upadhyaya did not, thus, admittedly know the testatrix

from before. He had seen her for the first time on the day when the Will was

executed and because Surendra Panda had asked him to identify her, he did so. It

was stated that the same was scribed by him as per dictation of Surendra Panda,

but in the Will, it was stated that he himself did it.

14. If he had put his signature before the testatrix had put her thumb impression

on the sale deed and the Will, he does not answer the requirement of attesting

witness. He was not aware of any other person attesting the Will and the sale deed.

P.W.9, therefore, failed to prove execution or attestation of the Will. Not only he

did not take any instruction from the testatrix before the Will was scribed, but the

same was done on the dictation of P.W.7. There is nothing on record to show that

the testatrix understood the meaning, purport and contents of the Will. She had put

her thumb impression in his presence. There is nothing on record to show that the

Will was read over and explained to the testatrix and she had put her thumb

impression upon understanding the contents and purport of the Will and put her

thumb impression as admission thereof. A certificate to that effect was in ordinary

course required to be given by the scribe of the Will, particularly when the same

had been found to be given by him in the sale deed executed by her on the same

day which was marked as Ext.16.

15. P.W.4-Purnachandra Rath, as noticed hereinbefore, gave a completely

different picture of the stay. According to him on 15.1.1982 the testatrix expressed

her desire to execute a Will as also a sale deed, whereupon he made a gist of the

contents of the Will and then asked P.W.9 to scribe it. No draft of the Will was

prepared although drafts of the sale deeds were prepared. Although in his

deposition P.W.-4 contended that he had endorsed a certificate in the Will to the

effect that the Will was written by his clerk in his office on his direction, the

certified copy of the Will did not show the same. A certificate to that effect

appeared in the Xeroxed copy of the Will which was brought on record and

marked at Ext.-13/a, but such a certificate did not find place in the certified copy of

the Will, and thus, no reliance can be placed thereupon.

16. The High Court in its judgment proceeded on the basis that P.W.-4 was also

a witness to the execution of the Will by the testatrix and thus would come within

purview of the definition of the term 'attesting witness'.

17. So far as the deposition of P.W.7-Surendra Panda is concerned, he

contradicts P.W.-9 as according to him he was not present when the testatrix had

put her thumb impression and he had attested her thumb impression before she

gave her thumb impression. His evidence to the effect that the Will was read over

and explained to the testatrix does not find mention in the Will and even a

statement that three attesting witnesses signed the Will does not appear to be

correct as only the name of P.W.-7 and P.W.-9 appeared as attesting witnesses in

the Will.

18. Learned counsel appearing on behalf of the respondents, however, would

submit that as the attesting witnesses were not willing to depose, it was not

necessary to prove attestation in terms of Section 71 of the Indian Evidence Act.

Summons were issued to the attesting witnesses by the Court. One of the attesting

witnesses did not appear, P.W.9 appeared but he was declared hostile. Our

attention in this connection has also been drawn to a part of his statement in the

cross-examination where he has deposed as under:

"\005 My Moharir licence might have been cancelled due to my

misconduct and illegal activities."

19. It is not for this Court, as submitted by the learned counsel, to consider the

integrity and honesty of the said witness. According to the learned counsel, not

only P.W.4 should be treated to be an attesting witness, but must also be held to

have proved due execution of the Will.

20. We may deal with the contention of the learned counsel in respect of

application of Section 71 of the Indian Evidence Act a little later. But, in our

opinion, P.W.-4 cannot be considered to be a witness to execution of the will as he

had nothing to do therewith. He comes into the picture only because an

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endorsement was found on the Xerox copy of the Will which, in our opinion, is of

doubtful origin, keeping in view the fact that the same did not find a mention in the

certified copy thereof. His evidence, in our opinion, would, thus, not be of much

significance. This aspect of the matter was not considered by the High Court at all.

We are, therefore, unable to agree with the following finding of the High Court:

"The attesting witnesses Purna Chandra Rath(P.W.4) Chandramani Das Mohapatra

and Banahihari Upadhay (P.W.9) were present when she affixed her LTI on the

Will. All the three attesting witnesses signed the Will in presence of Sarajumani

inasmuch as no reliance, whatsoever, can be placed on the testimony of P.W.-4,

PW-4 is an advocate. He is supposed to know the importance of attestation. If he

intended to be an attesting witness, he could have done so.

21. It was also not necessary for the appellants to confront him with his

signature in the Xeroxed copy of the Will, inasmuch as the same had not appeared

in the certified copy. Execution of a Will is required to be proved in terms of

Section 63 of the Succession Act, in terms whereof a Will must be attested by two

or more witnesses. Execution of a Will, therefore, can only be proved in terms of

clause (c) of Section 63 when at least one of the two witnesses proves the

attestation. A Will is required to be attested by two or more witnesses, each of

whom has seen the testator sign or affix his mark to the Will. Section 68 of the

Evidence Act provides for the requirements for proof of execution of the Will. In

terms of said provision, at least one attesting witness has to be examined to prove

execution of a Will.

22. P.W.-9, as noticed hereinbefore in his deposition, stated that Sarajumani

Dasi did not put her thumb impression in his presence on the Will at the time of its

execution. Whether the same would amount to denial of the execution of a Will

even within the meaning of Section 71 of the Indian Evidence Act is the question.

23. Section 71 of the Evidence Act reads as under:

"71. Proof when attesting witness denies the execution.- If

the attesting witness denies or does not recollect the execution of the

document, its execution may be proved by other evidence."

24. He neither denies the execution nor has failed to recollect the execution of

the Will. According to him, the testatrix had put her LTI only after he had put his

signature.

25. Section 71 of the Act provides for one of the exceptions where it is not

possible to strictly comply with the requirements of Section 68. Sections 69, 70

and Section 71 are exceptions to Section 68. Section 69 provides for proof of a

document where no attesting witness is found. Section 70 provides for admission

of execution by party to attested document. Section 71 deals with a situation where

the attesting witness denies or does not recollect the execution of the document and

only in that eventuality, the document's execution may be proved by other

evidence.

26. As indicated hereinbefore, P.W.-9 does not deny the execution. His

statement, thus, does not satisfy the requirements of Section 63(c) of the

Succession Act. While appreciating evidence of a witness, we cannot go beyond

the same and while doing so, we cannot raise a legal fiction that he must have done

so only because the first respondent had cross-examined him on certain issues. By

cross-examining one's own witness, the effect of his statement in examination-in-

chief in a case of this nature cannot be ignored. Whether Section 71 of the

Evidence Act was applicable in the facts of the present case must be found out

upon reading his evidence in its entirety.

27. Strong reliance has been placed by learned counsel on Ittoop Varghese v.

Poulose and Others, AIR 1975 Kerala 141. The High Court in that case

proceeded on the basis that Section 71 of the Act would be attracted when a

witness deliberately and falsely denies that he had attested the Will and in a

situation of that nature, the Court would be entitled to look into the totality of the

circumstances so as to enable it to arrive at a conclusion on the question of

attestation. In Ittoop Varghese case (supra), the witnesses categorically stated

that they had not seen the testator signing and did not gather any personal

acknowledgement from the testator on his signature in the Will and further that

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they did not sign in the presence of the testator. It was a case where the statement

of the witnesses was found to be wholly false. It was found having regard to the

fact situation obtaining therein and in particular having been found that the testator

knew about the formalities for the due execution of a valid Will which was also

corroborated by the endorsement made therein. The Kerala High Court,

furthermore, reassured itself from the other evidence that the testator had expressed

his desire to execute the Will and in fact wanted to assure himself that no quarrel

should arise between his sons after his death regarding the Will or his signature

and only for that purpose he got it registered. It was furthermore noticed that the

Sub-Registrar who had registered the document, on his examination, affirmed that

the document was read over to the testator and the testator acknowledged his

signature in the Will and also signed in token of presenting the Will before the

Sub-Registrar. The Sub-Registrar had also signed it as one of the witnesses. When

a Sub-Registrar had signed the document as a witness and after that D.W. -5 had

signed as an attesting witness upon execution of the document by the testator,

according to the High Court the circumstances of the case were sufficient to come

to the conclusion that there was proof of the due compliance of the formalities

required by Section 63 of the Succession Act in that case .

28. We may notice that this Court in Janki Narayan Bhoir v. Narayan Namdeo

Kadam, [(2003) 2 SCC 91] laid down the law on interpretation and application of

Section 71 of the Act in the following terms:

"11. Section 71 of the Evidence Act is in the nature of a

safeguard to the mandatory provisions of Section 68 of the

Evidence Act, to meet a situation where it is not possible to

prove the execution of the will by calling the attesting

witnesses, though alive. This section provides that if an

attesting witness denies or does not recollect the execution of

the will, its execution may be proved by other evidence. Aid of

Section 71 can be taken only when the attesting witnesses, who

have been called, deny or fail to recollect the execution of the

document to prove it by other evidence. Section 71 has no

application to a case where one attesting witness, who alone

had been summoned, has failed to prove the execution of the

will and other attesting witnesses though are available to prove

the execution of the same, for reasons best known, have not

been summoned before the court. It is clear from the language

of Section 71 that if an attesting witness denies or does not

recollect execution of the document, its execution may be

proved by other evidence. However, in a case where an

attesting witness examined fails to prove the due execution of

will as required under clause ( c ) of Section 63 of the

Succession Act, it cannot be said that the will is proved as per

Section 68 of the Evidence Act. It cannot be said that if one

attesting witness denies or does not recollect the execution of

the document, the execution of will can be proved by other

evidence dispensing with the evidence of other attesting

witnesses though available to be examined to prove the

execution of the will\005"

(Emphasis supplied)

29. Another vital aspect of the matter cannot also be ignored. Respondent No.1

in his evidence accepted that he had obtained the registered Will from the office of

the Sub-Registrar upon presenting 'the ticket' on 30.1.1982. After receipt of the

Will, he had shown it to Sarajumani Dasi. He did not say how the Will was lost,

particularly when he had not only shown the original Will to the testatrix but also

had consulted a lawyer in relation thereto. No information was lodged about the

missing of the document before any authority. Even approximate point of time the

Will was lost, was not stated. In his cross-examination, he stated: "I cannot say

where and how the original will was lost."

30. Loss of the original Will was, thus, not satisfactorily proved.

31. A document upon which a title is based is required to be proved by primary

evidence, and secondary evidence may be given under Section 65(c) of the

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Evidence Act. The said clause of Section 65 provides as under:

"When the original has been destroyed or lost, or when the party

offering evidence of its contents cannot, for any other reason not

arising from his own default or neglect, produce it in reasonable

time."

Loss of the original, therefore, was required to be proved.

32. In a case of this nature, it was obligatory on the part of the first respondent to

establish the loss of the original Will, beyond all reasonable doubt. His testimony

in that behalf remained uncorroborated.

33. Furthermore, secondary evidence, inter alia, could be led by production of a

certified copy given in terms of the provisions of the Indian Registration Act. In

support of the proof of the Will, purported Xerox copy and a certified copy thereof

have been produced. In the Xerox copy, an endorsement has been made by an

advocate that the executant was his client and it was written by his clerk in his

office on his dictation, whereas in the certified copy there is no such endorsement

of the advocate.

34. A question has also been raised as to whether a certificate by Sub-Registrar

at the time of registration proves attestation. A Sub-Registrar in the matter of

registration of a document acts under the provisions of the Registration Act, 1908

(1908 Act). Section 52 of the 1908 Act prescribes the duty of Registering Officer

when document is presented in terms thereof. The signature of every person

presenting a document for registration is required to be endorsed on every such

document at the time of presentation. Section 58 prescribes the particulars to be

endorsed on documents admitted to registration, such as :

"(a) Signature of the person admitting the execution of the

document;

(b) Any money or delivery of goods made in presence of

Registering Officer in reference to the execution of the document shall

be endorsed by the Registering Officer in the document presented for

Registration.

Therefore this is the only duty cast on the Registering authority

to endorse on the will, i.e. to endorse only the admission or execution

by the person who presented the document for registration. The

compliance of this provision leads to the legal presumption that the

document was registered and nothing else.."

35. If an authority in performance of a statutory duty signs a document, he does

not become an attesting witness within the meaning of Section 3 of the Transfer of

Property Act and Section 63 of the Succession Act. The term `attestation' means:

"to `attest' is to bear witness to a fact. The essential conditions

of valid attestation are (i) two or more witnesses have seen the

executant sign the instrument (ii) each of them has signed the

instrument in presence of the executant.

36. "Animus attestandi" is a necessary ingredient for proving the attestation. If

a person puts his signature in a document only in discharge of his statutory duty, he

may not be treated to be an attesting witness.

37. The Registering Officer Rabindranath Mohanty was examined as P.W.8. He,

in his deposition, stated:

" \005. I asked the executant her name, the name of the person in whose

favour the Will was executed and the nature of the document. \005.. She

admitted before me that she has executed the Will after understanding

the full import of the admission of execution of the Will."

While registering the Will, the Registering Officer has endorsed: "Execution is

admitted by the above Sarajumani Dasi who is identified by Sri Banabihari

Upadhyay S/o Harihar Upadhyaya, Advocate's clerk of Bhubaneswar".

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38. In Dharam Singh v. Aso and Another [1990 (Supp) SCC 684], this Court

held:

"2. The two attesting witnesses did not support the execution of the

will. The trial court relied upon the statement of the registering

authority and on the basis of decisions of the Lahore and Punjab and

Haryana High Courts found that the will had been proved. The lower

appellate court reversed the decision by relying upon two decisions of

this Court in M.L. Abdul Jabhar Sahib v. H.V. Venkata Sastri & Sons

and Seth Beni Chand v. Kamla Kunwar.

3. We have examined the record and are satisfied that the appellate

court and the High Court were right in their conclusion that the

Registrar could not be a statutory attesting witness. Therefore, the

conclusion that the will had not been duly proved cannot be

disturbed."

39. The said witness did not know the testatrix personally. Even her parentage

was not asked for and inquired into. He was examined eight years after the

registration. It is difficult for any ordinary person after a period of eight years,

inter alia, on the basis of a certified copy to depose in regard to evidence of such

nature, particularly, in a case where a Will has been executed on the day on which

she had executed a deed of sale in favour of a complete stranger. His evidence,

therefore, does not inspire confidence. In any event he cannot be said to have

proved due execution or attestation of the Will.

40. It is now well settled that requirement of the proof of execution of a Will is

the same as in case of certain other documents, for example Gift or Mortgage. The

law requires that the proof of execution of a Will has to be attested at least by two

witnesses. At least one attesting witness has to be examined to prove execution

and attestation of the Will. Further, it is to be proved that the executant had signed

and/or given his thumb impression in presence of at least two attesting witnesses

and the attesting witnesses had put their signatures in presence of the executant.

(See Madhukar D. Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85; Janki

Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91 and Bhagatram v.

Suresh and Others, (2003) 12 SCC 35).

41. The Court granting Letters of Administration with a copy of the Will

annexed, or probate must satisfy itself not only about the genuineness of the Will

but also satisfy itself that it is not fraught with any suspicious circumstances.

42. No independent witness has been examined to show how the testatrix came

close to the respondent No.1. Why valuable agricultural land measuring Ac 4.187

and homestead land along with a house standing thereon had been gifted in favour

of the first respondent, has not been explained. The original Will has not been

produced. Why both the Will and the sale deed should have been executed on the

same day, has not been explained.

43. The burden on the first respondent was heavy, he being a stranger to the

family. He failed to discharge the said burden. Variance, inconsistencies and

contradictions have been brought on record, particularly in the statements of P.W.-

4 and P.W.-9 and other witnesses vis-`-vis the contents of the document, which we

have noticed hereinbefore.

44. Learned trial Judge as also the High Court did not take into consideration the

effect of such contradictions and inconsistencies, particularly the

interpolation/variance in the Xerox copy of the Will vis-`-vis certified copy

thereof. Serious consideration was required to be bestowed on the contention of

the appellants that thumb impressions of the testatrix on different pages of the

Xerox copy did not tally. No effort was made to compare the thumb impression

appearing on the Xerox Copy with the thumb impression appearing on other

admitted documents. Non-production of the original Will stating that the Will got

lost, gives rise to an inference that it might have been that the Will did not contain

the thumb impression of the testatrix. The testatrix was an old and ill lady. She

had no independent adviser in the matter of the execution of the Will. On the other

hand, the plaintiff/respondent No.1 and his father being disciple of her Guru were

in a position to dominate her mental process.

45. Respondent No.1 was a student at the relevant time. His father had taken an

active part in the entire process in registering and culmination of the Will in

favour of his son. There are materials on record to show that although sufficient

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time had been granted for examination of the other attesting witnesses,

Chandramani Das Mohapatra was not summoned. No summon could be issued

only because his correct address had not been furnished.

46. Existence of suspicious circumstances itself may be held to be sufficient to

arrive at a conclusion that execution of the Will has not duly been proved.

47. In Rabindra Nath Mukherjee and Another v. Panchanan Banerjee (Dead) By

LRs. And Others [(1995) 4 SCC 459], this Court opined:

"8. If a total view is taken of the aforesaid circumstances,

which has to be the approach, we are of the opinion that

the courts below overplayed some circumstances which

they regarded as suspicious and somehow missed some

circumstances which bolstered the case of the

propounders."

48. We may, however, notice that in B. Venkatamuni v. C.J. Ayodhya Ram

Singh & Ors. [2006 (11) SCALE 148], this Court upon considering a large number

of decisions opined that proof of execution of Will must strictly satisfy the terms of

Section 63 of the Indian Succession Act. It was furthermore held:

"It is, however, well settled that compliance of

statutory requirements itself is not sufficient as would

appear from the discussions hereinafter made."

It was observed:

"Yet again Section 68 of the Indian Evidence Act

postulates the mode and manner in which proof of

execution of document required by law to be attested

stating that the execution must be proved by at least one

attesting witness, if an attesting witness is alive and

subject to the process of the Court and capable of giving

evidence."

It was emphasised that where there are suspicious circumstances, the onus

would be on the propounder to remove the suspicion by leading appropriate

evidence stating:

"However, having regard to the fact that the Will was

registered one and the propounder had discharged the

onus, it was held that in such circumstances, the onus

shifts to the contestant opposing the Will to bring

material on record meeting such prima facie case in

which event the onus shifts back on the propounder to

satisfy the court affirmatively that the testator did not

know well the contents of the Will and in sound

disposing capacity executed the same.

Each case, however, must be determined in the fact

situation obtaining therein.

The Division Bench of the High Court was, with

respect, thus, entirely wrong in proceeding on the

premise that compliance of legal formalities as regards

proof of the Will would sub-serve the purpose and the

suspicious circumstances surrounding the execution

thereof is not of much significance.

The suspicious circumstances pointed out by the

learned District Judge and the learned Single Judge of the

High Court, were glaring on the face of the records.

They could not have been ignored by the Division Bench

and in any event, the Division Bench should have been

slow in interfering with the findings of fact arrived at by

the said court. It applied a wrong legal test and thus,

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came to an erroneous decision."

49. Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors.

[2006 (14) SCALE 186], this Court held:

"Section 63 of the Indian Evidence Act lays down

the mode and manner in which the execution of an

unprivileged Will is to be proved. Section 68 postulates

the mode and manner in which proof of execution of

document is required by law to be attested. It in

unequivocal terms states that execution of Will must be

proved at least by one attesting witness, if an attesting

witness is alive subject to the process of the court and

capable of giving evidence. A Will is to prove what is

loosely called as primary evidence, except where proof is

permitted by leading secondary evidence. Unlike other

documents, proof of execution of any other document

under the Act would not be sufficient as in terms of

Section 68 of the Indian Evidence Act, execution must be

proved at least by one of the attesting witnesses. While

making attestation, there must be an animus attestandi,

on the part of the attesting witness, meaning thereby, he

must intend to attest and extrinsic evidence on this point

is receivable.

The burden of proof that the Will has been validly

executed and is a genuine document is on the

propounder. The propounder is also required to prove

that the testator has signed the Will and that he had put

his signature out of his own free will having a sound

disposition of mind and understood the nature and effect

thereof. If sufficient evidence in this behalf is brought on

record, the onus of the propounder may be held to have

been discharged. But, the onus would be on the applicant

to remove the suspicion by leading sufficient and cogent

evidence if there exists any. In the case of proof of Will,

a signature of a testator alone would not prove the

execution thereof, if his mind may appear to be very

feeble and debilitated. However, if a defence of fraud,

coercion or undue influence is raised, the burden would

be on the caveator. [See Madhukar D. Shende v. Tarabai

Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja

Shetty & Ors. (2005) 8 SCC 784]. Subject to above,

proof of a Will does not ordinarily differ from that of

proving any other document."

Noticing B. Venkatamuni (supra), it was observed:

"The proof a Will is required not as a ground of

reading the document but to afford the judge reasonable

assurance of it as being what it purports to be.

We may, however, hasten to add that there exists a

distinction where suspicions are well founded and the

cases where there are only suspicions alone. Existence of

suspicious circumstances alone may not be sufficient.

The court may not start with a suspicion and it should not

close its mind to find the truth. A resolute and

impenetrable incredulity is demanded from the judge

even there exist circumstances of grave suspicion. [See

Venkatachala Iyengar (supra)]"

[See also Joseph Antony Lazarus (Dead) By LRs. V. A.J. Francis, (2006) 9

SCC 515]

50. For the reasons aforementioned, the impugned judgment cannot be sustained

which is set aside. Accordingly, the appeal is allowed with costs. Counsel's fee

assessed at Rs.5,000/-.