REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1960 OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 22496 OF 2014)

DHANPAT .....APPELLANT(S)

VERSUS

SHEO RAM (DECEASED) THROUGH LRS. &  ORS. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by the

High Court of Punjab & Haryana on 27th March, 2014 whereby the

concurrent findings of fact recorded by both the courts below were

set aside and the suit filed by the respondent-plaintiff was decreed.

2. The High Court has framed the following two substantial questions

of law:

“1.   Whether  the  Will  dated  30.4.1980  Ex.D-3  was surrounded  by  suspicious  circumstances  and  due execution thereof was also not proved, in accordance with the requirements of Section 63 of the Succession Act;

2.  Whether  the  learned  courts  below  have  completely misread,  misconstrued  and  misinterpreted  the  evidence available on record, particularly the Will Ex.D-3, because of which the impugned judgments cannot be sustained.”

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3. The admitted facts are that one Misri was the grandfather of the

Plaintiff-Sheo Ram and defendant No.5-Sohan Lal  and defendant

Nos.7-9 were his granddaughters. Chandu Ram was the father of

the plaintiff and defendant Nos.5, 7-9 and the husband of Chand

Kaur had inherited the suit land from his father, Misri.  

4. The  plaintiff  filed  a  suit  for  declaration  that  he  along  with  his

mother, Chand Kaur and his sisters, defendants Nos. 7-9, were the

owners  and  in  possession  of  equal  shares  of  the  suit  land

measuring 489 kanals 4 marlas.  He asserted that he belonged to

the Jat community and was governed by Punjab Customary Law.

Further,  that his  brother,  defendant No.  5,  got a Will  dated 30 th

April, 1980 executed in favour of his sons, from Chandu Ram. Such

a Will contravened Jat Customary Law and was the result of fraud

and  misrepresentation.  Defendant  No.5  and  his  sons,  the

beneficiaries under the Will filed a common written statement and

asserted that the custom had been abrogated after passing of the

Hindu Succession Act, 19561 and that Chandu Ram had separated

all his sons during his life time and given sufficient amount to his

daughters,  defendant  Nos.7-9,  in  the shape of  dowry and other

ceremonial and customary festivities. In this regard, sufficient land

had also been given to the plaintiff, therefore, there was no Joint

Hindu Family.  The Will had been executed by Chandu Ram out of

his natural love and affection and was without any inducement or

1  for short, ‘Act’

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fraud or misrepresentation.

5. The learned trial court framed as many as 12 issues but for the

purpose of deciding the present appeal, Issue Nos. 1, 3 and 7 are

relevant which read as under:

“1.  Whether the plaintiff and the proforma defendants are the owners and in possession of the property in dispute?

xx xx xx

3.  Whether the Will dated 30.4.1980 was validly executed by Chandu Ram in favour of defendants No. 1 to 4?

xx xx xx

7.  Whether deceased Chandu had separated all his sons during his life time and had given sufficient amount to his daughters in the shape of dowry etc. and land to his sons as  alleged in  preliminary  objection  no.  5  of  the  written statement? If so to what effect?”

6. In respect of Issue No. 7 relating to the partition of the property by

Chandu Ram, the defendants relied upon a judgment and decree in

a suit filed by the Plaintiff-Sheo Ram and defendant No.5, Sohan Lal

against their father Chandu Ram.  Chandu Ram admitted the fact of

partition and that a judgment (Ex.D-21) and decree (Ex.D-22) to

this  effect  was  passed.   Thereafter,  a  mutation  was  also

sanctioned.  Chandu Ram had filed a suit for permanent injunction

to the effect that the property in dispute fell to his share while the

defendant (present plaintiff) was given 50 acres of land situated in

Village Gawar, 15½ acres of land in Village Bairan, 10 acres of land

in Village Hariawas and 6 acres of land in Village Baliali, totaling

81½ acres.  It was also pleaded that the defendant therein sold 50

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acres of land of Village Gawar and 15½ acres of  land of  Village

Bairan after this partition.  The defendant therein asserted that the

properties  mentioned  above  were  purchased  by  him  from  his

exclusive funds and, therefore, he has right to sell the same.  The

certified  copy  of  judgment  and  decree  are  Ex.  D-17  and  D-18.

Therefore,  the  learned  trial  court  held  that  Chandu  Ram  had

separated  his  sons  during  his  life  time  and  had  settled  his

daughters as well.  Such findings were affirmed by the learned First

Appellate Court.

7. In respect of Issue No. 3, the learned trial court held that the Will is

duly  proved on the basis  of  statement of  DW-3 Maha Singh,  an

attesting witness,  DW-4 Advocate D.S.  Panwar,  the scribe,  DW-5

Sohan, the defendant and Krishan Kant, Registration Clerk as DW 2.

The  Court  noticed  that  DW-4  D.S.  Panwar  was  Chandu  Ram’s

advocate in the cases before the Civil Court who had scribed the

Will at his instance and Maha Singh had put his signatures on the

original Will in his presence.  DW-4 D.S. Panwar deposed that the

original Will was stated to have been lost and that he was not sure

as to whether Ex. D-3 was the correct photocopy of the original

Will.    Chand Kaur, wife of Chandu Ram was examined as PW-1

who had deposed that Chandu Ram had ousted her from his house.

Therefore, the Court found that it was natural for Chandu Ram to

execute the Will in favour of Defendant No.5, Sohan Lal’s sons.  The

Court did not find any merit in the argument that a deviation from

natural succession will make the Will doubtful.  It was also held that

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the scribe cannot be treated as an attesting witness but that since

two attesting witnesses have signed the Will, the execution of the

Will is proved by examining one of the attesting witnesses.  With

the aforesaid  findings,  the learned trial  court  dismissed the suit

filed by the plaintiff.

8. The learned First Appellate Court affirmed the findings recorded by

the  trial  court  and  dismissed  the  suit  filed  by  the  plaintiff  vide

judgment and decree dated 11th May, 1987.  It was held that the

Will had been executed by Chandu Ram in favour of the defendant

Nos. 1 to 4, i.e. the sons of Defendant No.5, Sohan Lal and was not

surrounded by suspicious circumstances.   

9. In second appeal, the learned High Court allowed the appeal filed

by the  plaintiff  holding that  the Will  dated 30th April,  1980 was

surrounded by suspicious circumstances.  The substantial question

of law framed by the High Court was only to this effect.  It was

argued  by  the  defendants  that  the  finding  that  the  Will  stands

executed and was not surrounded by suspicious circumstances and

has been illegally interfered by the High Court.

10. The High Court had held that only Maha Singh was examined as

attesting witness as DW-3 whereas the second attesting witness

Azad Singh was not produced, therefore, the Will was not proved. It

also held that the Will had been completely misread, misconstrued

and misinterpreted.  The High Court found that in the Will, there

was no mention of Chandu Ram’s wife and the other son i.e. the

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Plaintiff, and therefore, such fact was a suspicious circumstance to

doubt the genuineness of the Will.  The High Court referred to the

judgment  of  the  trial  court  dated  7th December,  1981  filed  by

Chandu Ram to prove that the house and agricultural land were

ancestral  property though no substantial  question of  law on the

said aspect relating to the nature of land was framed.  In fact, the

judgment dated 7th December 1981 (Ex- D-17) in the suit filed by

Chandu  Ram,  has  been  produced  by  the  respondent  with  the

present appeal.  A perusal of the judgment shows that Chandu Ram

had asserted partition of the property about 8-10 years back.  The

Plaintiff-Sheo Ram had asserted that he is in joint possession of the

property.  In the said suit, a decree for permanent injunction was

passed restraining the defendant from interfering with the disputed

property  after  returning  a  finding  on  Issue  No.  5  that  a  family

partition had taken place and that the property cannot be said to

be joint property of the parties.  The High Court has not referred to

the findings recorded in the suit filed by the Plaintiff-Sheo Ram.   

11. It may be noticed that in view of Constitution Bench judgment of

this Court in Pankajakshi (D) through LRs & Ors. v. Chandrika

& Ors.2,  substantial  question of  law may not  be required to be

framed in Punjab and Haryana but still, the finding of fact recorded

cannot be interfered with even in terms of Section 41 of the Punjab

Courts Act, 1918.  The said question was examined by this Court in

Randhir Kaur  v. Prithvi Pal Singh and Others3,  wherein, the

2    (2016) 6 SCC 157 3    Civil Appeal No. 5822 of 2019 decided on 24th July, 2019

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scope for interference in the second appeal under Section 41 of the

Punjab Courts Act applicable in the States of Punjab and Haryana

was delineated and held as under:

“16.   A perusal  of  the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem  to  be.  The  findings  of  fact  will  also  include  the findings  on  the  basis  of  documentary  evidence.  The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact.

17.   In  view of  the above,  we find that  the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought  that  another  view would be a  better  view.  The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf  of  the Plaintiff; the fact that the plaintiff has not appeared as witness.”

12. In support of the findings recorded by the High Court, Mr. Manoj

Swarup, learned senior counsel for the plaintiff-respondent argued

that in terms of Section 69 of the Indian Succession Act, 1925, a

Will is required to be attested by two witnesses who have seen the

testator  and  in  which  the  testator  and  two  of  the  attesting

witnesses sign in presence of each other.  It is argued that Maha

Singh, DW-3 had not deposed that all three were present at the

same time, therefore, the finding of the High Court has to be read

in  that  context,  when  the  Will  was  found  to  be  surrounded  by

suspicious circumstances as the second attesting witness was not

examined.   It  is  also argued that the original  Will  has not  been

produced and no application for leading secondary evidence was

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filed.   Therefore, the secondary evidence could not be led by the

defendant to prove the execution of the Will.

13. Section 65(c) of the Indian Evidence Act, 18724 is applicable in the

facts  of  the  present  case  as  the  defendants  asserted  that  the

original Will is lost.  The Section 65 reads as under:

“65.   Cases  in  which  secondary  evidence  relating  to documents may be given. – Secondary evidence may be given  of  the  existence,  condition,  or  contents  of  a document in the following cases:-

(a) xx xx xx

(b) xx xx xx

(c) 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;

(d) xx xx xx

(e) xx xx xx

(f) xx xx xx

(g) xx xx xx

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.

xx xx xx”

14. The defendants produced a certified copy of the Will obtained from

the office of the Sub-Registrar. The defendants also produced the

photocopy of the Will scribed by DW 4- D.S. Panwar.  

15. In a judgment reported as  M. Ehtisham Ali for himself and in

place of M. Sakhawat Ali, since deceased v.  Jamna Prasad,

4  for short, ‘Evidence Act’

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since deceased & Ors.5, the appellants-plaintiffs filed a suit on

the basis of a sale deed.  During trial, the stand of the plaintiffs

was that the original sale deed was lost but since it was registered,

secondary evidence by way of a certified copy prepared by the

office of the Registrar was produced.  It was not disputed that the

copy  produced  was  not  the  correct  copy  of  the  registered

document.  The suit was dismissed for the reason that the plaintiffs

have not  succeeded in satisfactorily  establishing the loss of  the

original sale deed.  The Court held as under:

“It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be deposed to its  loss,  unless there is some  motive  suggested  for  his  being  untruthful,  his evidence  would  be  accepted  as  sufficient  to  let  in secondary evidence of the deed. And if in addition he was not cross-examined, this result would follow all the more. There is no doubt that the deed was executed, for it was registered, and registered in a regular way, and it is the duty of the registrar,  before registering, to examine the grantor, or some one whom he is satisfied is the proper representative of the grantor, before he allows the deed to be registered.”

16. In  another  judgment  reported  as Aher  Rama Gova & Ors.  v.

State of Gujarat6,  the secondary evidence of dying declaration

recorded by a Magistrate was produced in evidence.  This Court

found that though the original dying declaration was not produced

but from the evidence, it is clear that the original was lost and was

not available.  The Magistrate himself deposed on oath that he had

given the original dying declaration to the Head Constable whereas

5  AIR 1922 PC 56 6  (1979) 4 SCC 500

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the Head Constable deposed that he had made a copy of the same

and given it back to the Magistrate. Therefore, the Court found that

the  original  dying  declaration  was  not  available  and  the

prosecution  was  entitled  to  give  secondary  evidence  which

consisted of the statement of the Magistrate as also of the Head

Constable  who  had  made  a  copy  from the  original.   Thus,  the

secondary evidence of dying declaration was admitted in evidence,

though no application to lead secondary evidence was filed.

17. Even though, the aforesaid judgment is in respect of the loss of a

sale deed, the said principle would be applicable in respect of a

Will as well, subject to the proof of the Will in terms of Section 68

of the Evidence Act.  In the present case as well, the Will was in

possession of the beneficiary and was stated to be lost.  The Will is

dated        30th April,  1980 whereas the testator  died on 15th

January,  1982.   There  is  no  cross-examination  of  any  of  the

witnesses  of  the  defendants  in  respect  of  loss  of  original  Will.

Section  65  of  the  Evidence  Act  permits  secondary  evidence  of

existence, condition, or contents of a document including the cases

where the original  has been destroyed or  lost.  The plaintiff  had

admitted the execution of the Will though it was alleged to be the

result of fraud and misrepresentation.  The execution of the Will

was not disputed by the plaintiff but only proof of the Will was the

subject matter in the suit.   Therefore,  once the evidence of the

defendants is that the original Will was lost and the certified copy

is produced, the defendants have made out sufficient ground for

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leading of secondary evidence.   

18. This  Court  in  Bipin Shantilal  Panchal  v.  State of Gujarat &

Anr.7, deprecated the practice in respect of the admissibility of any

material  evidence,  where  the  Court  does  not  proceed  further

without  passing  order  on  such  objection.   It  was  held  that  all

objections raised shall be decided by the Court at the final stage.

The Court held as under:

“14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively  as  an  exhibit  in  the  case  (or  record  the objected  part  of  the  oral  evidence)  subject  to  such objections  to  be  decided  at  the  last  stage  in  the  final judgment.  If  the court  finds at  the final  stage that  the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide  the  objection  before  proceeding  further.  For  all other objections the procedure suggested above can be followed).

15.   The  above  procedure,  if  followed,  will  have  two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising  such  objections  and  the  court  can  continue  to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.”

7  (2001) 3 SCC 1

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19. This  Court  in  Z.  Engineers Construction Pvt.  Ltd.  & Anr.  v.

Bipin  Bihari  Behera  &  Ors.8,  held  that  even  in  respect  of

deficiency of stamp duty in the State of Orissa where a question

arose as to whether possession had been delivered in pursuance of

a registered power of attorney, the same was a question of fact

which was required to be decided after the evidence was led.

20. There is no requirement that an application is required to be filed in

terms of Section 65(c) of the Evidence Act before the secondary

evidence is led.  A party to the lis may choose to file an application

which is required to be considered by the trial court but if any party

to the suit has laid foundation of leading of secondary evidence,

either in the plaint or in evidence, the secondary evidence cannot

be  ousted  for  consideration  only  because  an  application  for

permission to lead secondary evidence was not filed.

21. Now, coming to the question as to whether the defendants have

proved the due execution of the Will, reference will be made to a

judgment  reported  as  H.  Venkatachala  Iyengar  v.  B.N.

Thimmajamma & Ors.9.  This Court while considering Section 63

of the Act and Section 68 of the Evidence Act laid down the test as

to whether the testator signed the Will and whether he understood

the nature and effect of the dispositions in the Will.  The Court held

as under:

“18. …Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator

8  2020 SCC OnLine SC 184 9  AIR 1959 SC 443

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has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect  of  the  dispositions  in  the  will?  Did  he  put  his signature to the will  knowing what it  contained? Stated broadly  it  is  the  decision  of  these  questions  which determines the nature of the finding on the question of the proof of wills. 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.”

22. This Court in a judgment reported as  Seth Beni Chand (since

dead) now by LRs.  v.  Smt. Kamla Kunwar & Ors.10 held that

onus probandi lies in every case upon the party propounding a Will,

and he must satisfy the conscience of the court that the instrument

so propounded is the last will of a free and capable testator.  The

Court held as under:

“9.  The question which now arises for consideration, on which the Letters Patent Court differed from the learned Single Judge of the High Court, is whether the execution of the  will  by  Jaggo  Bai  is  proved  satisfactorily.  It  is  well- settled that the onus probandi lies in every case upon the party  propounding  a  will,  and  he  must  satisfy  the conscience  of  the  court  that  the  instrument  so propounded is the last will of a free and capable testator. [ See Jarman on Wills (8th Edn., p. 50) and H. Venkatachala Iyengar v. B.N.  Thimmajamma,  AIR  1959 SC 443 :  1959 Supp  (1)  SCR  426]  By  “free  and  capable  testator”  is generally  meant  that  the  testator  at  the  time when he made the will  had a sound and disposing state of mind and memory.  Ordinarily,  the  burden of  proving  the  due execution of the will is discharged if the propounder leads evidence to show that the will bears the signature or mark of  the  testator  and  that  the  will  is  duly  attested.  For proving attestation, the best evidence would naturally be

10  (1976) 4 SCC 554

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of an attesting witness and indeed the will cannot be used as  evidence  unless  at  least  one  attesting  witness, depending on availability, has been called for proving its execution  as  required  by  Section  68  of  the  Evidence Act….”

23. In view of the aforesaid judgments, at least one of the attesting

witnesses is required to be examined to prove his attestation and

the attestation by another witness and the testator. In the present

case, DW-3 Maha Singh deposed that Chandu Ram had executed

his  Will  in  favour  of  his  four  grandsons and he and Azad Singh

signed as witnesses.  He deposed that the testator also signed it in

Tehsil  office.  He and Azad Singh were also witnesses before the

Sub-Registrar.    In the cross-examination,  he stated that he had

come  to  Tehsil  office  in  connection  with  other  documents  for

registration.   He deposed that  Ex.D-4-the Will,  was typed in  his

presence.  He denied the question that no Will was executed in his

presence.  There  was  no  cross-examination  about  his  not  being

present before the Sub-Registrar. Once the Will  has been proved

then the contents of such document are part of evidence. Thus, the

requirement  of  Section  63  of  the  Act  and  Section  68  of  the

Evidence  Act  stands  satisfied.   The  witness  is  not  supposed  to

repeat in a parrot like manner the language of Section 68 of the

Evidence Act.  It is a question of fact in each case as to whether the

witness  was  present  at  the  time  of  execution  of  the  Will  and

whether the testator and the attesting witnesses have signed in his

presence.  The statement of the attesting witness proves the due

execution of the Will apart from the evidence of the scribe and the

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official from the Sub-Registrar’s office.

  24. Mr.  Swarup referred to judgment of  this  Court  reported as  M.L.

Abdul Jabbar Sahib  v.  M.V. Venkata Sastri & Sons & Ors.11.

The  primary  issue  discussed  therein  was  a  summary  suit  for

recovery wherein an application for leave to defend was granted on

the condition of furnishing a security for a sum of Rs.50,000/-.  The

question examined was whether the security bond is attested by

the  two  witnesses  and,  if  not,  whether  it  was  invalid.   While

considering the attestation,  this  Court  discussed the question of

attestation of witnesses as well and held as under:

“8.  “In every case the Court must be satisfied that the names  were  written animo  attestandi”,  see  Jarman on Wills,  8th  Edn.,  p.  137.  Evidence  is  admissible  to show whether the witness had the intention to attest. “The  attesting  witnesses  must  subscribe  with  the intention that the subscription made should be complete attestation  of  the  will,  and  evidence  is  admissible  to show  whether  such  was  the  intention  or  not,” see Theobald  on  Wills,  12th  Edn.,  p.  129.  In Girja Datt v. Gangotri [AIR 1955 SC 346, 351] , the Court held that the two persons who had identified the testator at the time of the registration of the will and had appended their signatures at the foot of the endorsement by the sub-Registrar,  were  not  attesting  witnesses  as  their signatures were not put “animo attestandi”. In Abinash Chandra Bidvanidhi  Bhattacharya v. Dasarath Malo [ILR 56 Cal 598] it was held that a person who had put his name  under  the  word  “scribe”  was  not  an  attesting witness as he had put his signature only for the purpose of  authenticating  that  he  was  a  “scribe”.  In Shiam Sunder Singh v. Jagannath Singh [54 MLJ 43] , the Privy Council  held  that  the  legatees  who  had  put  their signatures on the will  in  token of  their  consent to  its execution  were  not  attesting  witnesses  and  were  not disqualified from taking as legatees.”

11  (1969) 1 SCC 573

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25. In the aforesaid case, it had been held that the person who put his

name under the word “scribe” was not an attesting witness, further

that the legatees who had put their signatures on the Will were not

attesting witnesses.   In the present case,  Maha Singh and Azad

Singh have signed the Will as attesting witnesses not only at the

time of execution but also at the time of registration before the

Sub-Registrar.  Therefore, the said judgment is not helpful to the

argument raised.

26. Mr. Swarup relied on judgment reported as N. Kamalam (Dead) &

Anr.  v.  Ayyasamy & Anr.12 that in  the absence of  Maha Singh

deposing that he is the attesting witness along with Azad Singh, his

statement cannot be treated to be that of attesting witness.  We do

not find any merit in the said argument. In the aforesaid case, it

was the scribe who was said to be the attesting witness.  This Court

held as under:

“27.  …The animus to attest, thus, is not available, so far as the scribe is concerned: he is not a witness to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer, rather goes against the propounder since both the witnesses are named therein with detailed address and  no  attempt  has  been  made  to  bring  them  or  to produce  them  before  the  court  so  as  to  satisfy  the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be the proof of due attestation unless the situation is so expressed  in  the  document  itself  —  this  is  again, however,  not  the  situation  existing  presently  in  the matter under consideration. Some grievance was made before  this  Court  that  sufficient  opportunity  was  not being made available, we are however, unable to record our concurrence therewith. No attempt whatsoever has

12  (2001) 7 SCC 503

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been  made  to  bring  the  attesting  witnesses  who  are obviously available.”

27. The said judgment has no applicability inasmuch as Maha Singh is

the  attesting  witness  and  has  been  examined  as  such  by  the

defendant.

28. Mr. Swarup further relied upon a judgment of this Court reported as

Janki Narayan Bhoir  v.  Narayan Namdeo Kadam13 to contend

that if one attesting witness is examined, he has to depose about

the presence of the second attesting witness by relying upon the

following findings:

“10.   …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 the 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.”

29. We  do  not  find  any  merit  in  the  said  argument  as  well.   The

13  (2003) 2 SCC 91

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statement of Maha Singh produced on record shows that he along

with Azad Singh, the other attesting witness and the testator had

signed the Will.  In the cross-examination, the statement that he

has signed the Will had not been disputed nor that the testator or

the  other  attesting  witness  was  not  present  at  that  time.

Therefore, the ratio of the aforesaid judgment is not applicable to

the facts of the present case. In fact, it is finding of fact, recorded

by the First Appellate Court.

30. In respect of an argument that some of the natural heirs were not

even mentioned in the Will,  therefore,  the Will  is  surrounded by

suspicious circumstances is again not tenable.  Mr. Rishi Malhotra,

learned counsel for the appellant referred to the judgment of this

Court  reported  as  Rabindra  Nath  Mukherjee  &  Anr.  v.

Panchanan Banerjee (Dead) by LRs. & Ors.14 wherein it  had

been  held  that  the  Will  was  executed  for  the  exclusion  of  the

natural  heirs.   The  suspicious  circumstances  found by  the  High

Court to deprive the natural heirs by the testatrix was not found to

be sufficient. The Court held as under:

“4.  As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea  behind  execution  of  will  is  to  interfere  with  the normal  line  of  succession.  So  natural  heirs  would  be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala, whereas the objectors  descendants  of  a  full  blood  sister,  the disinheritance of latter could not have been taken as a suspicious circumstance, when some of her descendants

14  (1995) 4 SCC 459

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are even beneficiaries under the will.” 31. Mr. Malhotra referred to another judgment of this Court reported as

Ved Mitra Verma  v.  Dharam Deo Verma15 wherein this Court

held that the exclusion of the children of the testator and execution

of the Will for the sole benefit of one of the sons by the testator, is

not a suspicious circumstance.  This Court held as under:

“8.  The exclusion of the other children of the testator and the execution of the will for the sole benefit of one of the sons  i.e.  the  respondent,  by  itself,  is  not  a  suspicious circumstance. The property being self-acquired, it is the will of the testator that has to prevail.”

32. Mr. Malhotra also referred to the judgment of this Court reported as

Leela Rajagopal & Ors.  v.  Kamala Menon Cocharan & Ors.16

wherein it was held that it is the overall assessment of the Court on

the  basis  of  the  unusual  features  appearing  in  the  Will  or  the

unnatural circumstances surrounding its execution, that justifies a

close scrutiny of the same before it can be accepted.  Herein, the

cumulative  effect  of  the  unusual  features  and  circumstances

surrounding  the  Will,  would  weigh  upon  the  court  in  the

determination required to be made by it. The judicial verdict will be

based  on  the  consideration  of  all  the  unusual  features  and

suspicious circumstances put together and not upon the impact of

any  single  feature  that  may  be  found  in  a  Will  or  a  singular

circumstance  that  may  appear  from  the  process  leading  to  its

execution.  The Court held as under:

“13. A will may have certain features and may have been executed in certain circumstances which may appear to be  somewhat  unnatural.  Such  unusual  features

15  (2014) 15 SCC 578 16  (2014) 15 SCC 570

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appearing  in  a  will  or  the  unnatural  circumstances surrounding  its  execution  will  definitely  justify  a  close scrutiny  before  the  same  can  be  accepted.  It  is  the overall  assessment  of  the  court  on  the  basis  of  such scrutiny;  the cumulative effect of  the unusual  features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict,  in  the  last  resort,  will  be  on  the  basis  of  a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated  pronouncements  made  by  this  Court  on  the subject  including  the  decisions  referred  to  and  relied upon before us.

14.   In  the  present  case,  a  close  reading  of  the  will indicates its clear language, and its unambiguous purport and effect. The mind of the testator is clearly discernible and the  reasons  for  exclusion  of  the  sons  is  apparent from the will itself…”

33. In view of the above, we find that the High Court has clearly erred

in law in interfering with the concurrent findings of fact recorded by

both the Courts below.  The entire judgment runs on misconception

of law and is, therefore, not sustainable in law.  The same is set

aside  and  the  decree  of  the  First  Appellate  Court  is  restored.

Accordingly, the appeal is allowed and the suit is dismissed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; MARCH 19, 2020.

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