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CASE NO.:

Appeal (civil) 11194 of 1995

PETITIONER:

Janki Narayan Bhoir

RESPONDENT:

Narayan Namdeo Kadam

DATE OF JUDGMENT: 17/12/2002

BENCH:

Doraiswamy Raju & Shivaraj V. Patil.

JUDGMENT:

J U D G M E N T

SHIVARAJ V. PATIL J.

This appeal by special leave is by the defendant

questioning the validity and correctness of the

impugned judgment and decree passed by the High Court

in the second appeal. The respondent herein filed the

suit for possession of the suit properties comprised of

agricultural land and a house as owner under the will

said to have been executed by Honaji Dama Kadam. The

trial court, accepting the will on the basis of

evidence placed on record, decreed the suit. The

District Judge in the Regular First Appeal set aside

the decree passed by the trial court. The High Court

in the second appeal by the impugned judgment and

decree set aside the judgment of the first appellate

court and restored the judgment and decree passed by

the trial court.

The contentions urged by the learned counsel for

the appellant were that the will in question was not

proved as required by law, having regard to Section 63

of Indian Succession Act read with Section 68 of the

Indian Evidence Act,1872 the attestation of will by two

witnesses was not established; the High Court committed

an error in treating the scribe as an attesting witness

when he did not sign as animo attestendi. The evidence

of the one attesting witness examined does not

establish the attestation of the will by another

attesting witness; the other attesting witness though

available, was not examined; the High Court committed a

serious error in setting aside the judgment of the

first appellate court which was based on proper

appreciation of evidence in the absence of any

substantial question of law that arose for

consideration.

On the other hand, the learned counsel for

respondent urged that although Section 63 of the

Succession Act requires attestation of a will at least

by two witnesses but the will could be proved by

examining one attesting witness as per Section 68 of

the Evidence Act and by leading other evidence as per

Section 71 of the Evidence Act. He fairly conceded

that the scribe was not and could not be treated as an

attesting witness in this case.

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We have carefully considered the respective

contentions urged by the learned counsel for the

parties.

The appellant is the only daughter of Honaji Dama

Kadam (deceased). The respondent is the son of cousin

brother of said Honaji Dama Kadam. The respondent is

claiming the suit properties on the basis of the Will

dated 23.10.1975, said to have been executed by the

deceased Honaji Dama Kadam. The High Court, by the

impugned judgment, set aside the judgment and decree of

the first appellant court holding that the Will was

duly established and restored the decree passed by the

trial court. The District Judge on appreciating the

evidence placed on record had held that the respondent

failed to prove the execution of the Will; the

respondent examined only one attesting witness and his

evidence was not sufficient to establish that the Will

was duly executed; in that view reversing the decree of

the trial court dismissed the suit filed by the

respondent. One Duttatray Raikar was the scribe of the

Will. Ramkrishna Wagle and Prabhakar Sinkar were the

attesting witnesses. During the trial the respondent,

Raikar, the scribe, and Prabhakar Sinkar, one of the

attesting witnesses, were examined. Prabhakar Sinkar,

the attesting witness, in his deposition stated that he

did not know whether other attesting witness Ramkrishna

Wagle was present in the house of the respondent at the

time of execution of the Will. He also stated that he

did not remember as to whether himself and Raikar were

present when he put his signature. He did not see

witness Wagle at that time; he did not identify the

person who had put thumb impression on the Will. The

scribe Raikar in his evidence stated that he wrote the

Will and he also stated that he signed on the Will Deed

as a scribe. He further stated that attesting witness,

namely, Wagle and Prabhakar Sinkar are alive. The High

Court took the view that though Wagle, the other

attesting witness, was not examined but his signature

on the Will was not disputed; both the respondent and

Raikar deposed that Wagle and Sinkar had signed the

Will as attesting witnesses; in these circumstances the

evidence of Raikar should have been accepted. The High

Court was of the opinion that it was not necessary to

examine both the attesting witnesses and in case one

attesting witness examined was unable to remember

whether the other attesting witness was present and had

signed, then it was open to the court to rely upon the

surrounding circumstances as well as the testimony of

other witnesses. The High Court also took the view

that though Raikar had written down the Will he had

also signed it and he could have been treated as an

attesting witness as he had also signed the Will. Thus

the High Court was of the opinion that the Will was

proved and the District Judge was wrong in reversing

the judgment and decree of the trial court.

At the hearing the learned counsel for the

respondent fairly submitted that Raikar was only the

scribe and he was not the attesting witness. Even

looking to the evidence of Raikar himself it is clear

that he gave evidence as the scribe. There is nothing

on record to indicate that he had any intention to

attest the Will. The attesting witness Sinkar has not

stated that the other attesting witness Wagle attested

the Will in his presence. On the other hand, he has

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stated that he did not see Wagle present at the time of

execution of the Will. Wagle, the other attesting

witness, being alive ought to have been examined in

order to prove the Will. Nothing is brought on record

to show that any attempt was made to examine Wagle or

there was any impediment in examining him. It is true

that although will is required to be attested by two

witnesses it could be proved by examining one of the

attesting witnesses as per Sections 68, Indian Evidence

Act.

We think it appropriate to look at the relevant

provisions, namely, Section 63 of the Indian Succession

Act, 1925 and Sections 68 and 71 of the Indian Evidence

Act, 1872 which read:

Section 63 of the Succession Act

"63. Execution of unprivileged wills.-

Every testator, not being a soldier

employed in an expedition or engaged in

actual warfare, or an airman so employed

or engaged, or a mariner at sea, shall

execute his will according to the

following rules:-

(a) .....

(b) .....

(c) The will shall be attested by

two or more witnesses, each of

whom has seen the testator sign

or affix his mark to the will

or has seen some other person

sign the will, in the presence

and by the direction of the

testator, or has received from

the testator a personal

acknowledgement of his

signature or mark, or of the

signature of such other person;

and each of the witnesses shall

sign the will in the presence

of the testator, but it shall

not be necessary that more than

one witness be present at the

same time, and no particular

form of attestation shall be

necessary."

Section 68 of the Evidence Act

"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 it's execution, if there

be an attesting witness alive, and subject to

the process of the Court and capable of

giving evidence:

Provided..."

Section 71 of the Evidence Act

"71. Proof when attesting witness denies the

execution.- If the attesting witness denies

or does not recollect the execution of the

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document, its execution may be proved by

other evidence."

To say will has been duly executed the

requirements mentioned in clauses (a), (b) and (c) of

Section 63 of the Succession Act are to be complied

with i.e., (a) the testator has to sign or affix his

mark to the will, or it has got to be signed by some

other person in his presence and by his direction; (b)

that the signature or mark of the testator, or the

signature of the person signing at his direction, has

to appear at a place from which it could appear that by

that mark or signature the document is intended to have

effect as a will; (c) the most important point with

which we are presently concerned in this appeal, is

that the will has to be attested by two or more

witnesses and each of these witnesses must have seen

the testator sign or affix his mark to the Will, or

must have seen some other person sign the Will in the

presence and by the direction of the testator, or must

have received from the testator a personal

acknowledgement of signature or mark, or of the

signature of such other person, and each of the

witnesses has to sign the Will in the presence of the

testator.

It is thus clear that one of the requirements of

due execution of will is its attestation by two or more

witnesses which is mandatory.

Section 68 of the Evidence Act speaks of as to how

a document required by law to be attested can be

proved. According to the said Section, a document

required by law to be attested 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 an evidence.

It flows from this Section that if there be an

attesting witness alive capable of giving evidence and

subject to the process of the Court, has to be

necessarily examined before the document required by

law to be attested can be used in an evidence. On a

combined reading of Section 63 of the Succession Act

with Section 68 of the Evidence Act, it appears that a

person propounding the will has got to prove that the

will was duly and validly executed. That cannot be done

by simply proving that the signature on the will was

that of the testator but must also prove that

attestations were also made properly as required by

clause (c) of Section 63 of the Succession Act. It is

true that Section 68 of Evidence Act does not say that

both or all the attesting witnesses must be examined.

But at least one attesting witness has to be called for

proving due execution of the Will as envisaged in

Section 63. Although Section 63 of the Succession Act

requires that a will has to be attested at least by two

witnesses, Section 68 of the Evidence Act provides that

a document, which is required by law to be attested,

shall not be used as evidence until one attesting

witness at least has been examined for the purpose of

proving its due execution if such witness is alive and

capable of giving evidence and subject to the process

of the Court. In a way, Section 68 gives a concession

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to those who want to prove and establish a will in a

Court of law by examining at least one attesting

witness even though will has to be attested at least by

two witnesses mandatorily under Section 63 of the

Succession Act. But what is significant and to be

noted is that that one attesting witness examined

should be in a position to prove the execution of a

will. To put in other words, if one attesting witness

can prove execution of the will in terms of clause (c)

of Section 63, viz., attestation by two attesting

witnesses in the manner contemplated therein, the

examination of other attesting witness can be dispensed

with. The one attesting witness examined, in his

evidence has to satisfy the attestation of a will by

him and the other attesting witness in order to prove

there was due execution of the will. If the attesting

witness examined besides his attestation does not, in

his evidence, satisfy the requirements of attestation

of the will by other witness also it falls short of

attestation of will at least by two witnesses for the

simple reason that the execution of the will does not

merely mean the signing of it by the testator but it

means fulfilling and proof of all the formalities

required under Section 63 of the Succession Act. Where

one attesting witness examined to prove the will under

Section 68 of the Evidence Act fails to prove the due

execution of the will then the other available

attesting witness has to be called to supplement his

evidence to make it complete in all respects. Where

one attesting witness is examined and he fails to prove

the attestation of the will by the other witness there

will be deficiency in meeting the mandatory

requirements of Section 68 of the Evidence Act.

Section 71 of the Evidence Act is in the nature of

a safeguard to the mandatory provisions of Section 68,

Evidence Act, to meet a situation where it is not

possible to prove the execution of the will by calling

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 the 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. Yet, another reason as to why other available

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attesting witnesses should be called when the one

attesting witness examined fails to prove due execution

of the Will is to avert the claim of drawing adverse

inference under Section 114 illustration (g) of

Evidence Act. Placing the best possible evidence, in

the given circumstances, before the Court for

consideration, is one of the cardinal principles of

Indian Evidence Act. Section 71 is permissive and an

enabling Section permitting a party to lead other

evidence in certain circumstances. But Section 68 is

not merely an enabling Section. It lays down the

necessary requirements, which the Court has to observe

before holding that a document is proved. Section 71

is meant to lend assistance and come to the rescue of a

party who had done his best, but driven to a state of

helplessness and impossibility cannot be let down

without any other means of proving due execution by

"other evidence" as well. At the same time Section

71 cannot be read so as to absolve a party of his

obligation under Section 68 read with Section 63 of the

Act and liberally allow him, at his will or choice to

make available or not a necessary witness otherwise

available and amenable to the jurisdiction of the court

concerned and confer a premium upon his omission or

lapse, to enable him to give a go bye to the mandate of

law relating to proof of execution of a will.

Turning to the facts of the case on hand, it is

evident that only one attesting witness Prabhakar

Sinkar, examined in the case, did not prove the

execution of the Will inasmuch as he did not prove the

attestation of the Will by the other attesting witness

Wagle who though available was not examined. The

scribe examined in the case was not an attesting

witness, which is clear from the evidence on record and

as rightly conceded so by learned counsel for the

respondent before us. Hence, it is unnecessary to go

into the question whether the scribe in this case could

or could not be an attesting witness. The evidence of

Sinkar, the only attesting witness, does not satisfy

the mandatory requirements of Section 68 of the

Evidence Act. We are not in a position to accept the

contention urged on behalf of the respondent that the

evidence of other witnesses, namely, that of the

respondent and the scribe could be considered under

Section 71 of the Evidence Act. Section 71 has no

application when the one attesting witness, who alone

has been summoned, has failed to prove the execution of

the will and other attesting witness though available

has not been examined. When the document is not proved

as mandatorily required under Section 68 of the

Evidence Act, the provision of Section 71 of the

Evidence Act, which is permissive, and enabling in

certain circumstances as discussed above does not help

the respondent. In Vishnu Ramkrishna & Ors. v. Nathu

Vithal & Ors. [(AIR) 1949 Bom. 266], Chagla, C.J.,

speaking for the Division Bench in similar

circumstances has stated that although Section 63 of

the Succession Act requires that a will has to be

attested by two witnesses, Section 68 of the Evidence

Act permits the execution of the will to be proved by

only one attesting witness being called. Where the

attesting witness, who is called to prove the

execution, is not in a position to prove the

attestation of the will by the second witness, the

evidence of the witness called falls short to the

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mandatory requirements of Section 68. Section 71 of

the Evidence Act can only be requisitioned when the

attesting witnesses who have been called failed to

prove the execution of the will by reason of either

denying their own signatures or denying the signature

of the testator or having no recollection as to the

execution of the document. This Section has no

application when one attesting witness has failed to

prove the execution of the will and other attesting

witnesses were available who could prove the execution

if they were called.

The view taken in Mt. Manki Kaur v. Hansraj Singh

& Ors. [(AIR) 1938 Patna 301], on which heavy reliance

was placed by the learned counsel for the respondent,

in our view is not a correct view as to the scope and

effect of Section 71 of the Evidence Act. That case

related to an action taken on mortgage bond and not on

a Will. There were four attesting witnesses. One of

them was dead, two others, who were called, denied

execution. But the absence of fourth from Court was

not explained. On the facts of that case, the High

Court took the view that the execution of the mortgage

bond could be proved by other evidence having recourse

to Section 71 of the Evidence Act. In our opinion, the

position of law explained in relation to Section 71 of

the Evidence Act in the judgment of Bombay High Court

aforementioned is a correct view which we approve.

In the case on hand it was not established that

the two witnesses attested the Will. The High Court

committed a serious error in reversing the judgment and

decree of the first appellate court on a finding of

fact, which was based on proper and objective

appreciation of evidence. The High Court was also wrong

in treating the scribe of the Will, Raikar, as an

attesting witness without any basis. Further, the High

Court while reversing the judgment and decree of the

first appellate court did not indicate as to any

substantial question of law that arose for

consideration between the parties to deprive the suit

properties to the only daughter of deceased Honaji Dama

Kadam.

Under these circumstances we have no hesitation in

holding that the High Court committed a manifest error

in reversing the judgment and decree of the first

appellate court. In this view the impugned judgment

and decree cannot be sustained. Hence, they are set

aside. The judgment and decree of the first appellate

court are restored. In the result, the suit filed by

the respondent-plaintiff shall stand dismissed. There

shall be no order as to costs.