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CASE NO.: Appeal (civil)  3124 of 2008

PETITIONER: Babu Singh & Ors

RESPONDENT: Ram Sahai @ Ram Singh

DATE OF JUDGMENT: 30/04/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO.    3124      OF 2008 (Arising out of SLP (C) No.10288 of 2006)

S.B. Sinha, J.

1.      Leave granted. 2.      Interpretation of Section 69 of the Evidence Act, 1872 is in question  in this appeal which arises out of a judgment and order dated 11.11.2005  passed by the High Court of Punjab & Haryana. 3.      One Ram Bux executed a Will dated 25.9.1981 in favour of the  respondent herein bequeathing his right, title and interest in the property in  question.   Appellants claimed themselves to be the owner and in possession of  the suit property which is a shop, as a co-sharer to the extent of 6 marlas out  of the land measuring 3 kanal and one marla appertaining to Khasra No.53  situated in the area of Chhoti Haveli, Tehsil and District Ropar. 4.      Learned Trial Court, inter alia, raised the following issues : "1.     Whether the plaintiff is owner of the suit  property? OPP 2.      Whether the Plaintiffs are entitled to the  possession of the shop in question? OPP XXX                     XXX                     XXX 6.      Whether the defendants are entitled to the  counter claim to the effect that they are  owner of the shop in question and co-sharer  to the extent of 0-6 marlas of the land fully  detailed in the counter claim? OPD"

       We need not go into other issues between the parties. 5.      The learned Trial Judge, although opined that the suit was bad for  non-impleading Karam Kaur and Dalwinder Kaur, daughters of the testator  as parties to the suit, proceeded to consider the validity of the Will in order  to avoid any possibility of remand by the Trial Court, stating : "The plaintiff was duty bound to examine at least  one attesting witnesses to prove the execution of  the Will Ex.P/2.  It has come in evidence that  Lambardar Mohan Singh expired before he could  be examined as a witness.  Other attesting  witnesses House was alive and had been given up  by the plaintiff on the plea that he had been won  over by the other party.  Thus, Will Ex.P/2 has not  been proved according to Section 68 of the Indian  Evidence Act."

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6.      The learned Judge, however, noticed that one of the attesting  witnesses, namely,  Harnek Singh @ House, according to the learned  counsel for the plaintiff, had gone outside India and another attesting  witness, namely, Lambardar Mohan Singh being dead, the Will must be held  to have been duly proved.  It was held : "Though there is no plausible and cogent evidence  on record to show that House had gone to foreign  country.  But even if for argument sake the plea of  the Plaintiff is taken to be correct.  Even in that  eventuality the Sub-Registrar has only identified  the signatures on the will to be that of Mohan  Singh as attesting witness.  Though the Plaintiff  also examined PW-9 Davinder Parshad  Handwriting expert who examined the signatures  of the executant on the Will Ex.P/2 and the sale  deed but he took all these signatures as standard  signatures.  The sale deeds, however, have not  been proved by the Plaintiff to contain the  signatures of Ram Bux.  Expert compared these  standard signatures with the questioned signatures  on the family settlement.  Therefore, there is  nothing on record to suggest that Handwriting  expert took the signatures of will as questioned and  compared the same with admitted or proved  signatures of Ram Bux.  Therefore, the Plaintiff  miserably failed to show that the Will Ex.P/2  contained the signatures of Ram Bux.   Consequently, the Plaintiff failed to prove the due  execution of the Will Ex.P/2, as per the  requirement of Section 69 of the Indian Evidence  Act.         In result, the Plaintiff failed to show that  deceased Ram Bux executed legal and valid will  dated 25.9.1981 in his favour.  In view of this  finding I need not dilate on the argument of the  learned counsel for the defendants that the Will  Ex.P/2 was surrounded by suspicious  circumstanced."

7.      An appeal was preferred thereagainst.   The First Appellate Court, however, on the said issue held : "Now so far as the Will Ex.P/2 is concerned, it was  allegedly executed by Ram Bux Singh son of Daya  Ram on 25.9.1981 and was duly got registered in  the office of the Sub-Registrar, Ropar, on the same  date.  It is evident that this Will was attested by  two witnesses, namely, Harnek Singh son of Ram  Prakash and Mohan Singh, Lamberdar.  So far as  Mohan Singh Lamberdar is concerned, he had  since died on 4.7.1983 vide death Certificate Ex.P3  and for this reason he could not be brought in the  witness box.  However, Harnek Singh son of Ram  Parkash is alive but it is stated by Shri A.L.  Verma, counsel for the Plaintiff as well as Plaintiff  himself on 29.10.1999 that Harnek Singh witness  has joined hands with the opposite party and  moreover, he has intentionally left to a foreign  country.  For this reason, Harnek Singh son of  Ram Parkash also could not be examined by him.   Now the question arises whether the statement of  the deed-writer who also knew Ram Bux Singh  can be relied upon or not and whether he can be

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treated as an attesting witness or not."

8.      The High Court by reason of the impugned judgment dismissed the  Second Appeal preferred by the appellant herein opining that no substantial  question of law arose for its consideration. 9.      Mr. Viraj Datar, learned counsel appearing on behalf of the appellant,  submitted that in the facts and circumstances of this case, Section 69 of the  Evidence Act cannot be said to have any application whatsoever and, thus,  the High Court committed a serious error in passing the impugned judgment.   10.     Indisputably a Will is to be attested by two witnesses in terms of  Section 68 of the Indian Evidence Act (Act).  Indisputably, the requirement  of Section 63(1)(c) of the Indian Succession Act is required for to be  complied with for proving a writ.  Section 68 of the Act mandates proof by  attesting witnesses of not merely of execution but also attestation by two  witnesses.  That is to say, not only the execution of Will must be proved but  actually execution must be attested by at least two witnesses.  Attestation  must of execution of Will be in conformity with the provisions of Section 3  of the Transfer of Property Act.   ’Attestation’ and ’execution’ connote two different meanings.  Some  documents do not require attestation.  Some documents are required by law  to be attested. 11.     In terms of Section 68 of the Act, although it is not necessary to call  more than one attesting witness to prove due execution of a Will but that  would not mean that an attested document shall be proved by the evidence of  one attesting witness only and two or more attesting witnesses need not be  examined at all.  Section 68 of the Act lays down the mode of proof.  It  envisages the necessity of more evidence than mere attestation as the words  ’at least’ have been used therein.  When genuineness of a Will is in question,  apart from execution and attestation of Will, it is also the duty of a person  seeking declaration about the validity of the Will to dispel the surrounding  suspicious circumstances existing if any.  Thus, in addition to proving the  execution of the Will by examining the attesting witnesses, the propounder  is also required to lead evidence to explain the surrounding suspicious  circumstances, if any.  Proof of execution of the Will would, inter alia,  depend thereupon. 12.     The Court, while granting probate of the will, must take into  consideration all relevant factors.  It must be found that the will was product  of a free will.  The testator must have full knowledge and understanding as  regards the contents thereof.  For the said purpose, the background facts may  also be taken note of.  Where, however, a plea of undue influence was taken,  the onus wherefor would be on the objector and not on the offender.  {See  Savithri & Ors. v. Karthyayani Amma & Ors. [JT (2007) 12 SC 248]} 13.     Section 69 of the Act reads, thus : "Section 69\027Proof where no attesting witness  found\027If no such attesting witness can be found,  or if the document purports to have been executed  in the United Kingdom, it must be proved that the  attestation of one attesting witness at least is in his  handwriting, and that the signature of the person  executing the documents is in the handwriting of  that person."

14.     It would apply, inter alia, in a case where the attesting witness is  either dead or out of the jurisdiction of the court or kept out of the way by  the adverse party or cannot be traced despite diligent search.  Only in that  event, the Will may be proved in the manner indicated in Section 69, i.e., by  examining witnesses who were able to prove the handwriting of the testator  or executant.  The burden of proof then may be shifted to others.   15.     Whereas, however, a Will ordinarily must be proved keeping in view  the provisions of Section 63 of the Indian Succession Act and Section 68 of  the Act, in the event the ingredients thereof, as noticed hereinbefore, are  brought on record, strict proof of execution and attestation stands relaxed.   However, signature and handwriting, as contemplated in Section 69, must be

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proved.   16.     Indisputably, one of the attesting witnesses was dead.  Our attention,  however, has been drawn to the fact that a purported summons were taken  out against the said Harnek Singh.   Admittedly, it was not served.   There is  nothing on record to show that any step was taken to compel his appearance  as a witness.   Ram Sahai in his deposition did not make any statement that  the said Harnek Singh had been won over by the appellant.   He did not say  that despite service of summons, Harnek Singh did not appear as a witness.    In his cross-examination, he alleged that he and Harnek Singh were  enimically disposed of towards each other even prior to 1991 and in fact  "since the time of his ancestors".   It was furthermore alleged that they are  not on speaking terms.   A suggestion was given to him that in fact Harnek  Singh had come to Court on that day to which he denied his knowledge.   It  is only in answer to a question in cross-examination, he stated that he did not  intend to examine the said Harnek Singh.    Harnek Singh may be a person who had been won over by the  appellant but there must be some evidence brought on records in that behalf.   The learned Trial Judge, in our opinion, rightly rejected the bare statement  made by the learned counsel for the plaintiff that the other attesting witness  had gone out of the country.  Respondent himself did not say so on oath.  He  did not examine any other witness.   He did not make any attempt to serve another summons upon him.   No process was asked for to be served by the court. Interestingly, a  statement was made by a counsel before the appellate court.  That statement  is said to have been made before the appellate court by the plaintiff himself  on 29.10.1999.  We are at a loss to understand how such a statement by a  counsel or by the respondent himself was taken into consideration for the  purpose of invoking Section 69 of the Indian Evidence Act.  A purported  statement, not as a witness but through the counsel, cannot be said to be an  evidence.  We have noticed hereinbefore that learned Trial Judge did not  accept such a statement.  In that view of the matter, the first appellate Court,  in our opinion, committed a serious legal error.  17.     In Hare Krishna Panigrahi Vs. Jogneswar Panda and Others [AIR  1939 Cal. 688], B.K. Mukherjea, J. referring to Section 71 stated the law  thus : "This presupposes in my opinion that the witness  is actually produced before the Court and then if  he denies execution or his memory fails or if he  refuses to prove or turns hostile, other evidence  can be admitted to prove execution.   In the case  referred to above the witness was actually before  the Court and afterwards turned hostile.   In this  case however, the witness was not before the Court  at all and no question of denying or failing to  recollect the execution of the document did at all  arise.   The plaintiff simply took out a summons as  against this witness and nothing further was done  later on.   In a case like this where the attesting  witnesses are not before the Court, S. 71, Evidence  Act, has in my opinion, got no application.   In  such cases it is the duty of the plaintiff to exhaust  all the processes of the Court in order to compel  the attendance of any one of the attesting witnesses  and when the production of such witnesses is not  possible either legally or physically, the plaintiff  can avail himself of the provisions of S. 69,  Evidence Act."

18.     In Amal Sankar Sen & Ors. v. The Dacca Co-operative Housing  Society Ltd. (in liquidation) by Inspector Liquidator, Co-operative Society,  Dacca [(A.I.R (32) 1945 Calcutta 350], it was held : "As we have already stated, that proposition of law  cannot be challenged at this date.  In order that  S.69, Evidence Act, may be applied, mere taking  out of the summons or the service of summons

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upon an attesting witness or the mere taking out of  warrant against him is not sufficient.  It is only  when the witness does not appear even after all the  process under Order 16 Rule 10, which the Court  considered to be fit and proper had been exhausted  that the foundation will be laid for the application  of Section 69, Evidence Act.  The party, namely,  the plaintiff, must move the Court for process  under Order 16, Rule 10, Civil P.C., when a  witness summoned by him has failed to obey the  summons but when the plaintiff does move the  Court but the Court refuses the process asked for  we do not see why Section 69, Evidence Act,  cannot be invoked.  The other view would place  the plaintiff in an impossible position when the  witness is an attesting witness to the document on  which he has brought the suit, and the Court  refuses coercive processes contemplated in Order  16 Rule 10 Civil P.C."

19.     In Doraiswami Vs. Rathnammal and others [(AIR 1978 Mad. 78], the  same principle was reiterated, stating : "11.    D. 2. 2 merely identifies the signature of  Palani Navithan found in Ex. B-1 as that of his  father.   The mere fact that the signature of Palani  Navithan is proved, in our opinion, is not sufficient  to prove the due execution of the will.   The  evidence of this witness is relied on for proving the  signature of one of the attesting witnesses and thus  enable the third defendant to adduce secondary  evidence regarding the due execution of the will.    The evidence of D.W. 2 will be relevant only for  the purposes of S. 69 of the Evidence Act.    Section 69 will come into play only when no  attesting witness can be found.   In this case, as  already stated, an attesting witness D.W. 4 has  been examined and he has denied his attestation of  the document.   Therefore S. 69 can have no  application.   The evidence of D.W. 2, therefore,  even if accepted, will not help the third defendant."

20.     We may notice that in Apoline D’ Souza v. John D’ Souza [(2007) 7  SCC 225], this Court held that the question as to whether due attestation has  been established or not will depend on the fact situation obtaining in each  case.  Therein, it was held : "13. Section 68 of the Evidence Act, 1872  provides for the mode and manner in which  execution of the will is to be proved. Proof of  attestation of the will is a mandatory requirement.  Attestation is sought to be proved by PW 2 only.  Both the daughters of the testatrix were nuns. No  property, therefore, could be bequeathed in their  favour. In fact one of them had expired long back.  Relation of the testatrix with the respondent  admittedly was very cordial. The appellant before  us has not been able to prove that she had been  staying with the testatrix since 1986 and only on  that account she was made a beneficiary thereof.  The will was full of suspicious circumstances. PW  2 categorically stated that the will was drafted  before her coming to the residence of the testatrix  and she had only proved her signature as a witness  to the execution of the will but the document was a

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handwritten one. The original will is typed in  Kannada, although the blanks were filled up with  English letters. There is no evidence to show that  the contents of the will were read over and  explained to the testatrix. PW 2 was not known to  her. Why was she called and who called her to  attest the will is shrouded in mystery. Her evidence  is not at all satisfactory in regard to the proper  frame of mind of the testatrix. There were several  cuttings and overwritings also in the will."

       In the aforementioned situation, the Will was said to have not been  proved.         This Court therein noticed, inter alia, the decision of B. Venkatamuni  v. C.J. Ayodhya Ram Singh & Ors. [(2006) 13 SCC 449] wherein the law  has been laid down in the following terms : "25. 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."

21.     We generally agree with the aforementioned view of the Calcutta  High Court.  Assuming, however, that even taking the course of Order XVI  of the Code of Civil Procedure might not be necessary, what was imperative  was a statement on oath made by the plaintiff.  A deposition of the plaintiff  is a witness before the Court and not the statement through a counsel across  the Bar.  Such a statement across the Bar cannot be a substitute for evidence  warranting invocation of Section 69 of the Evidence Act. 22.     For the reasons, aforementioned, the impugned judgment of the High  Court as also the First Court of Appeal cannot be sustained.  They are set  aside accordingly.  Appeal is allowed with no order as to costs.