REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    1600        OF 2009 (Arising out of SLP (Crl.) No.4258 of 2007)

Yumnam Ongbi Tampha ….. Appellant Ibemma Devi

Versus

Yumnam Joykumar Singh & Ors. …..Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge

of the Guwahati High Court in the First Appeal by the respondents.  Before

the High Court  challenge was  to  the  order  passed by learned Additional

District  Judge  (Fast  Track  Court)  Manipur  East,  Imphal,  in  Original

(Probate) Petition No. 14/92/19 of 2003.

3. Background facts as noted by the High Court are as follows:

Shri Yumnam Joykumar Singh, Smt. Yumnam Ningol Khumanthem

Ongbi  Bijanbala  and  Smt.  Yumnam Ningol  Binodini  Dcvi,  who  are  the

respondents, are the son and daughters of late Yumnam Gouramani Singh.

Smt.  Yumnam Ongbi  Tampha  Ibema Devi,  who  is  the  appellant  in  this

appeal,  is  the  widow of  late  Yumnam Mani  Singh,  son  of  the  said  late

Yumnam  Gouramani  Singh,  Smt.  Yumnam  Ningol  Harijabam  Ongbi

Binodkumari Devi, who is the respondent No.2 in this appeal, is a daughter

of late Gouramani respondent.   Smt. Loitongbam Ningol Yumnam Ongbi

Ibeyaima Devi, Yumnam Raynold Singh and Kumari Yumnam Rina alias

Riya  Devi,  are  widow,  son  and  daughter  respectively  of  late  Yumnam

Birmani  Singh,  son  of  the  said  late  Yumnam  Gouramani  Singh.  Smt.

Yumnam Ongbi  Lalitabi  Devi,  is  the  widow  of  the  said  late  Yumnam

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Gouramani  Singh.  Shri  R.K.  Barunisana  Singh,  who  is  the  proforma

respondent  in  the  appeal,  is  the  husband of  Binodini.  Appellant  filed  an

application alleging that her father in-law Yumnam Gouramani Singh duly

executed his last will on 13-8-86 in accordance with law in presence of two

attesting witnesses bequeathing the plot of land under C.S. Dag No. 16/2720

measuring ‘053 acres of Patta No. 304 of Unit A-1, Imphal Municipality at

Thangal Bazar along with building standing thereon in her favour. In this

application, the appellant prayed for granting letters of administration with

the Will annexed in her favour.

The appellant before the High Court and respondent Nos. 6, 7 and

proforma  respondent  No.8  opposed  the  application  by   filing  a  written

statement wherein they denied the alleged due execution of the will. It was

submitted that  there was no execution of a will  much less  in accordance

with law.  It was also stated that on the alleged date of execution of the will

i.e. 13.8.1986, the said Yumnam Gouramani Singh was staying in U.P. and

not in Imphal.  It was also alleged that there were suspicious circumstances

which ought to be considered before the will could be accepted as genuine.

It  is  to  be  noted  that  in  the  proceedings  before  the  learned  Additional

District Judge the following three issues were framed.

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“(1) Whether late Yumnam Gouramani Singh left behind a Will

dated 13.8.1986 bequeathing the plot of land under C.S. Dag

No. 16/2720 measuring 53 acres of patta No. 304-A of Unit A-

1  Imphal  Municipality  to  the  petitioner  Yumnam  Tampha

Ibema Devi?

(2) Is the Court fee paid properly?

(3) Is the petitioner Yumnam Tampha Ibema Devi entitled to

the relief claimed?”  

It  appears  that  by  judgment  and  order  dated  9.4.2004  the  learned

Additional District Judge accepted the prayer and directed as follows:

“Heard Learned counsel for the parties.  And also

for the discussion, observations and reasons aforesaid, I

am  of  the  view  that  (L)  Y.  Gouramani  Singh  had

executed the will Ext.A/1 in favour of the petitioner.  In

the  result,  it  is  ordered  and  decreed  that  a  letter  of

administration be issued in favour of  petitioner on her

deposit of the requisite stamp as required by the Indian

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Succession Act,  1925,  minus the plot  of land given in

Exts. B/1,B/2,B/3 and B/4.  Case is accordingly disposed

of.”

The  primary  stand  before  the  High  Court  was  that  no  issue  was

framed  regarding  the  genuineness  of  the  Will,  and  the  requirements  of

Section  63  of  the  Indian  Succession  Act,  1925 (in  short  the ‘Succession

Act’)  and  Section  68  of  the  Indian  Evidence  Act,  1872  (in  short  the

‘Evidence Act’) were not kept in view.  The High Court accepted the prayer

particularly with reference to the evidence of PW 2 who claimed to be one

of  the  attesting  witnesses.  The  High Court  allowed  the  appeal  inter  alia

holding that the evidence of PW2 is vague and it cannot be said that there

was  due  execution  of  the  will  in  question.  PW 2  was  not  even  having

knowledge about the death of the alleged executor more than 14 years prior

to the date of his giving evidence. Though he claimed that he had reached

the house of said Gouramani Singh on being summoned, there was nobody

present when he had gone there.  He stated that he had put the signature

without understanding as to why he was putting his signature and he did not

know the nature of the document on which he had put his signature.  He

also did not state that said Yumnam Gouramani Singh put his signature on

the  document  or  if  the  said  Gouramani  Singh  said  anything  about  his

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signature  or  mark  having  been  put  on  the  document.   He  did  not  say

anything about presence of any another person as an attesting witness in

respect of any document by the said Yumnam Gouramani Singh. The High

Court concluded that PW2 failed to testify anything regarding alleged due

execution and attestation of the will.   Accordingly, the appeal was allowed.

4. Learned counsel for the appellant submitted that the High Court has

lost sight of the fact that PW2 deposed in court after a long lapse of time.

Merely because he omitted to say certain things that cannot be a ground to

discard the evidentiary value of his evidence and the High Court should not

have interfered with the order of the trial court.

5. Learned counsel for the respondents supported the judgment.

6. As per provisions of Section 63 of the Succession Act, for the due

execution of a Will (1) the testator should sign or affix his mark to the Will;

(2)  the  signature  or  the  mark  of  the  testator  should  be  so  placed  that  it

should appear that it was intended thereby to give effect to the writing as a

Will; (3) the Will should be attested by two or more witnesses, and (4) each

of  the  said  witnesses  must  have  seen  the  testator  signing or  affixing  his

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mark to the Will and each of them should sign the Will in presence of the

testator.  

7. The attestation of the Will in the manner stated above is not an empty

formality. It means signing a document for the purpose of testifying of the

signatures of the executant. The attested witness should put his signature on

the Will animo attestandi. It is not necessary that more than one witness be

present at the same time and no particular form of attestation is necessary.

Since a Will is required by law to be attested, execution has to be proved in

the manner laid down in section and the Evidence Act which requires that at

least one attesting witness has to be examined for the purpose of proving the

execution of such a document.  Therefore, having regards to the provisions

of Section 68 of the Evidence Act and Section 63 of the Succession Act, a

Will to be valid should be attested by two or more witnesses in the manner

provided therein and the propounder thereof should examine one attesting

witness to prove the will.  The attesting witness should speak not only about

the testator’s signature or affixing his mark to the will but also that each of

the witnesses had signed the will in the presence of the testator.

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8. In Girja Datt Singh v.  Gangotri Datt Singh [AIR 1955 SC 346] this

court observed as follows:         

“15. When this position was realised the learned counsel for Gangotri fell back on an alternative argument and it was that the deceased admitted execution and completion of  the  will  Ex.  A-36  and  acknowledged  his  signature thereto  before  the  Sub-Registrar  at  Tarabganj  and  this acknowledgment of his signature was in the presence of the  two  persons  who  identified  him  before  the  Sub- Registrar viz. Mahadeo Pershad and Nageshur who had in their turn appended their signatures at the foot of the endorsement  by  the  Sub-Registrar.  These  signatures  it was contended were enough to prove the due attestation of the will Ex. A-36. This argument would have availed Gangotri  if  Mahadeo  Pershad  and  Nageshur  had appended their signatures at the foot of the endorsement of registration animo attestandi. But even apart from this circumstance  it  is  significant  that  neither  Mahadeo Pershad nor Nageshur was called as a witness to depose to  the  fact  of  such  attestation  if  any.  One  could  not presume from the mere signatures of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section  68  of  the  Indian  Evidence  Act  requires  an attesting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Nageshur be treated as attesting witnesses. This line of argument therefore cannot help Gangotri.”

9. In B. Venkatamuni v. C.J. Ayodhya Ram Singh [2006(13) SCC 449],

it was observed as follows:

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“15. It  is,  however,  well  settled  that  compliance  with statutory  requirements  itself  is  not  sufficient  as  would appear from the discussions hereinafter made. 16. The  approach  of  the  Division  Bench  of  the  High Court did not address itself the right question. It took an erroneous  approach to  the issue as  would appear  from the  decision  of  this  Court  in  Surendra  Pal v.  Dr. Saraswati  Arora  [1974(2)  SCC 600] whereupon again Mr V. Balachandran himself placed reliance, wherein the law was stated in the following terms: (SCC p. 605, para 7)

“7. The propounder has to show that the will was signed by the testator;  that  he was at  the  relevant time  in  a  sound  disposing  state  of  mind,  that  he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are  established,  the  onus  which  rests  on  the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by  suspicious  circumstances,  such  as,  where  the signature is doubtful, the testator is of feeble mind or  is  overawed  by  powerful  minds  interested  in getting  his  property,  or  where  in  the  light  of  the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other  reasons for doubting that  the dispositions  of the will are not the result of the testator’s free will and  mind.  In  all  such  cases  where  there  may be legitimate  suspicious  circumstances  those  must  be reviewed and satisfactorily explained before the will is  accepted.  Again  in  cases  where  the  propounder has himself taken a prominent part in the execution of the will which confers on him substantial benefit that  is  itself  one  of  the  suspicious  circumstances which  he  must  remove  by  clear  and  satisfactory

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evidence. After all, ultimately it is the conscience of the court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need  to  satisfy  that  conscience  and  remove  any suspicion  which  a  reasonable  man  may,  in  the relevant circumstances of the case, entertain.”

17. In  H.  Venkatachala  Iyengar v.  B.N. Thimmajamma [AIR 1959 SC 443] it was opined: (SCR pp. 443-45)

“However, there is one important feature which distinguishes wills  from other documents. Unlike other documents the will speaks from the death of the  testator,  and  so,  when  it  is  propounded  or produced  before  a  court,  the  testator  who  has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an  element  of  solemnity  in  the  decision  of  the question as to whether the document propounded is proved to be the last will and testament of the departed  testator.  Even  so,  in  dealing  with  the proof  of  wills  the  court  will  start  on  the  same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that  the will  was signed by the testator,  that  the  testator  at  the  relevant  time was in a sound and disposing state of mind, that he understood  the  nature  and  effect  of  the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced  in  support  of  the  will  is  disinterested, satisfactory and sufficient to prove the sound and disposing  state  of  the  testator’s  mind  and  his signature  as  required  by  law,  courts  would  be justified  in  making  a  finding  in  favour  of  the propounder.  In  other  words,  the  onus  on  the propounder can be taken to be discharged on proof of the essential facts just indicated.

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There  may,  however,  be  cases  in  which  the execution  of  the  will  may  be  surrounded  by suspicious  circumstances.  The  alleged  signature  of the  testator  may  be  very  shaky  and  doubtful  and evidence in support of the propounder’s case that the signature in question is  the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator’s mind may appear  to  be  very  feeble  and  debilitated;  and evidence adduced may not  succeed in removing the legitimate  doubt  as  to  the  mental  capacity  of  the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant  circumstances;  or,  the  will  may  otherwise indicate  that  the  said  dispositions  may  not  be  the result  of  the  testator’s  free  will  and  mind.  In  such cases  the  court  would  naturally  expect  that  all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator.  The  presence  of  such  suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or  coercion  in  respect  of  the  execution  of  the  will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may  raise  a  doubt  as  to  whether  the  testator  was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus  to  remove  any  such  legitimate  doubts  in  the matter.”

In Guro v. Atma Singh [1992(2) SCC 507] this Court has opined: (SCC p. 511, para 3)

“3.  With  regard to  proof  of  a will  the  law is well settled that the mode of proving a will does not ordinarily differ from that of proving any other

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document  except  as  to  the  special  requirement prescribed in the case of a will by Section 63 of the Succession Act, 1925. The onus of proving the will  is  on the propounder  and  in  the  absence  of suspicious  circumstances  surrounding  the execution  of  the  will,  proof  of  testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however there were suspicious circumstances, the onus would be on the propounder to explain them to  the  satisfaction  of  the  court  before  the  will could  be  accepted  as  genuine.  Such  suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leading part in the making  of  the  will  under  which  he  receives  a substantial  benefit.  The  presence  of  suspicious circumstances makes the initial  onus heavier and the  propounder  must  remove  all  legitimate suspicion before the document can be accepted as the last will of the testator.”

19. Yet again Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is 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. 20. This Court in  Daulat Ram v.  Sodha [2005(1) SCC 40] stated the law thus: (SCC p. 43, para 10)

“10. Will being a document has to be proved by primary evidence  except  where  the  court  permits  a document  to  be  proved  by  leading  secondary evidence.  Since  it  is  required  to  be  attested,  as provided in Section 68 of the Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses 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

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capable  of  giving  evidence.  In  addition,  it  has  to satisfy  the  requirements  of  Section  63  of  the Succession Act, 1925. In order to assess as to whether the will  has been validly executed and is a genuine document, the propounder has to show that the will was  signed  by the  testator  and  that  he  had  put  his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence  of  two  witnesses  who  attested  it  in  his presence  and  in  the  presence  of  each  other.  Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious  circumstances,  the  onus  is  on  the propounder  to  remove  the  suspicion  by  leading appropriate  evidence.  The burden to  prove  that  the will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.” (emphasis supplied) 21. Yet  again  in  Meenakshiammal v.

Chandrasekaran [2005(1) SCC 280] it was stated: (SCC p. 287, para 19)

“19.  In  Chinmoyee  Saha v.  Debendra  Lal  Saha [AIR  1985  Cal  349] it  has  been  held  that  if  the propounder takes a prominent part in the execution of the will, which confers a substantial benefit on him, the propounder is  required to remove the doubts  by clear and satisfactory evidence. Once the propounder proves that the will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the disposition and put his signature out of his own free will, and that he signed it in presence of the witnesses who attested it in his presence, the onus, which rests on the propounder, is discharged and when allegation of undue influence, fraud or coercion is made by the

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caveator,  the  onus  is  on  the  caveator  to  prove  the same.” (See also Sridevi v. Jayaraja Shetty [2005 (2) SCC 784].

22. The  principle  was  reiterated  in  Pentakota Satyanarayana     v.  Pentakota  Seetharatnam [2005  (8) SCC 67]   wherein it  was stated: (SCC pp. 81-82, para 24)

“24. In the instant case, the propounders were called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state  of  mind,  that  he understood the nature and effect of the dispositions and put his signature to the document of his own free will. In other words, the  onus  on  the  propounder  can  be  taken  to  be discharged on proof of the essential facts indicated above.”

However, having regard to the fact that the will  was a 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 (sic)  know well  the contents  of  the  will  and in  sound disposing capacity executed the same. 23. Each case, however, must be determined in the fact

situation obtaining therein. 24. The  Division  Bench  of  the  High  Court  was,  with

respect, thus, entirely wrong in proceeding on the premise that compliance with legal formalities as regard proof of the will  would  subserve  the  purpose  and  the  suspicious circumstances  surrounding the execution thereof  is  not  of much significance.”

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10. In  Benga  Behera v.  Braja  Kishora  Nanda [2007(9)  SCC  728]  in

paragraphs 40 and 41 to 46 it was inter alia observed as follows:

“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 Bhagat Ram v. Suresh 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 Respondent 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 PW 4 and PW 9 and other witnesses vis-à- 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-à-

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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  1  and  his  father being disciple of her guru were in a position to dominate her mental process.

45. Respondent 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 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 been duly proved.”

11. The  position  was  reiterated  in  Anil  Kak v.  Sharada  Raje [2008(7)

SCC 695].   

12. It is to be noted that the trial court did not even record any reason for

coming  to  the  conclusions  as  done.  No  issue  was  framed regarding  the

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validity of the will.  The evidence of PW2 does not in any way support the

claim of due execution and attestation of the will. On the contrary, it clearly

establishes that he did not sign in his presence, he did not know what was

the nature of the document. There was no attesting witness who has signed

in  his  presence  and,  therefore,  the  requirements  of  Section  68  of  the

Evidence  Act  have  to  be  complied  with  in  order  to  show  that  the  two

persons  who  claimed  to  have  signed  as  attesting  witness  can  be  really

treated as attesting witnesses. Above being the position, we find no merit in

this appeal which is accordingly dismissed.

……………………………..J. (Dr. ARIJIT PASAYAT)

……………………………..J. (V.S. SIRPURKAR)

….…………………………..J. (ASOK KUMAR GANGULY)

New Delhi: March 06, 2009  

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