Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 4181-4182 of 2015, Judgment Date: May 01, 2015

  • 14.  As would be evident from the contents of Section 63 of the Act that  to
    execute the Will as contemplated therein, the testator would  have  to  sign
    or affix his mark to it or the same has to be signed by  some  other  person
    in his presence and on his direction. Further the signature or mark  of  the
    testator or the signature of the person signing for him has to be so  placed
    that it would appear that it was intended thereby  to  give  effect  to  the
    writing as Will.  The Section further mandates that the Will shall  have  to
    be attested by two or more witnesses each of  whom  has  seen  the  testator
    sign or affix his mark to it or has seen some other persons sign it, in  the
    presence and on the direction of the testator,  or  has  received  from  the
    testator, personal acknowledgement of a signature or mark, or the  signature
    of such other persons and that each of the witnesses has signed the Will  in
    the presence of the testator.  It is, however, clarified that it  would  not
    be necessary that more than one witness be present  at  the  same  time  and
    that no particular form of attestation would be necessary.
  • 15.1.  In the evidentiary context Section 68 of the Act  1872  enjoins  that
    if a document is required by law to be attested, it would  not  be  used  as
    evidence unless one attesting witness, at least, if alive,  and  is  subject
    to  the  process  of  Court  and  capable  of  giving  evidence  proves  its
    execution.  The proviso attached to this Section  relaxes  this  requirement
    in case of a document,  not  being  a  Will,  but  has  been  registered  in
    accordance with the provisions of the Indian Registration  Act  1908  unless
    its execution by the person by whom it purports to have  been  executed,  is
    specifically denied.
  • 15.2. These statutory provisions, thus, make it  incumbent  for  a  document
    required by law to be attested to have its execution proved by at least  one
    of the attesting witnesses, if alive, and  is  subject  to  the  process  of
    Court  conducting  the  proceedings  involved  and  is  capable  of   giving
    evidence.  This rigour is,  however,  eased  in  case  of  a  document  also
    required to be attested but not a Will, if the same has been  registered  in
    accordance with the provisions of the Indian Registration Act,  1908  unless
    the execution of this document by  the  person  said  to  have  executed  it
    denies the same.  In  any  view  of  the  matter,  however,  the  relaxation
    extended by the proviso is of no avail qua a Will.  The proof of a  Will  to
    be admissible  in  evidence  with  probative  potential,  being  a  document
    required by law to be attested by  two  witnesses,  would  necessarily  need
    proof of its execution through at least one of the attesting  witnesses,  if
    alive, and  subject to the process of the Court concerned and is capable  of
    giving evidence.
  • 15.3  Section 71 provides, however, that if the attesting witness denies  or
    does not recollect the execution of  the  document,  its  execution  may  be
    proved by other evidence. The interplay of the  above  statutory  provisions
    and the underlying legislative objective would be  of  formidable  relevance
    in  evaluating  the  materials  on  record  and  recording  the  penultimate
    conclusions.  With this backdrop, expedient it would be, to  scrutinize  the
    evidence adduced by the parties.
  • 42.  This Court underlined that Section 71 of the  Act  1872  was  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 and  cannot  be  let
    down without any other opportunity of  proving  the  due  execution  of  the
    document by other evidence. That, however, Section 71 cannot be  invoked  so
    as to absolve the party  of  his  obligation  under  Section  68  read  with
    Section 63 of the Act and to liberally allow him, at his will or choice,  to
    make available or not, necessary witness otherwise  available  and  amenable
    to jurisdiction of the Court, was highlighted in  emphatic  terms.  That  no
    premium upon such omission or lapse so as to enable him to give a go-bye  to
    the  mandates  of  law  relating  to  proof  of  execution  of  a  Will,  as
    contemplated by these statutory provisions, was  precisely  underlined.   In
    the facts and circumstances of that case, as the  second  attesting  witness
    though available had not been summoned, the benefit of  Section  71  of  Act
    1872 was not extended.  The Will was thus held to  be  not  proved  for  the
    failure of the  attesting  witness  so  produced,  to  testify  as  per  the
    ordainment of Section 63 (c) of the Act.
  • 45.  A Will as an instrument of testamentary disposition of  property  being
    a legally acknowledged mode of bequeathing a testator’s acquisitions  during
    his lifetime, to be acted upon only on his/her demise, it is no  longer  res
    integra, that it carries with it an overwhelming element  of  sanctity.   As
    understandably, the testator/testatrix, as the case may be, at the  time  of
    testing the document for its validity, would  not  be  available,  stringent
    requisites for the proof thereof have been statutorily enjoined to rule  out
    the possibility of any manipulation.  This is more so, as many a times,  the
    manner of dispensation is in stark departure from the prescribed  canons  of
    devolution of property  to  the  heirs  and  legal  representatives  of  the
    deceased.  The rigour of Section 63 (c) of the Act and Section  68  of  1872
    Act is thus befitting the underlying exigency to  secure  against  any  self
    serving intervention contrary to the last wishes of the executor.
  • 45.1  Viewed in premise, Section 71 of the 1872 Act has  to  be  necessarily
    accorded a strict interpretation.   The  two  contingencies  permitting  the
    play  of  this  provision,  namely,  denial  or  failure  to  recollect  the
    execution by the attesting witness produced,  thus  a  fortiori  has  to  be
    extended a meaning to ensure that the limited liberty granted by Section  71
    of 1872 Act does not in any manner efface  or  emasculate  the  essence  and
    efficacy of Section 63  of  the  Act  and  Section  68  of  1872  Act.   The
    distinction between failure on the part of a attesting witness to prove  the
    execution and attestation of a Will and his or her denial of the said  event
    or failure to recollect the same, has  to  be  essentially  maintained.  Any
    unwarranted indulgence, permitting extra liberal flexibility  to  these  two
    stipulations, would render the predication of Section  63  of  the  Act  and
    Section 68 of the 1872 Act, otiose.  The propounder can be initiated to  the
    benefit  of  Section  71  of  the   1872   Act   only   if   the   attesting
    witness/witnesses, who is/are alive and is/are produced and in  clear  terms
    either denies /deny the execution of the document or  cannot  recollect  the
    said incident.  Not only, this witness/witnesses  has/have  to  be  credible
    and impartial, the evidence adduced ought to demonstrate  unhesitant  denial
    of the execution of the document or authenticate real forgetfulness of  such
    fact.  If the testimony evinces  a  casual  account  of  the  execution  and
    attestation of the document disregardful of  truth,  and  thereby  fails  to
    prove these two essentials as per law, the propounder  cannot  be  permitted
    to adduce other evidence under cover of Section 71 of the 1872 Act.  Such  a
    sanction would not only be incompatible with the scheme  of  Section  63  of
    the Act read with Section 68 of the 1872 Act but also  would  be  extinctive
    of  the  paramountcy  and  sacrosanctity   thereof,   a   consequence,   not
    legislatively intended. If the evidence of the  witnesses  produced  by  the
    propounder is inherently worthless and lacking in  credibility,  Section  71
    of Act 1872 cannot be invoked to bail him (propounder) out of the  situation
    to facilitate a roving pursuit. In absence of any touch of truthfulness  and
    genuineness in  the  overall  approach,  this  provision,  which  is  not  a
    substitute of Section 63 (c ) of the Act and Section 68  of  the  1872  Act,
    cannot be invoked to supplement such failed speculative endeavour.
  • 45.2  Section 71 of the 1872 Act, even if assumed to be akin  to  a  proviso
    to the mandate contained in Section 63 of the Act  and  Section  68  of  the
    1872 Act, it has to be assuredly construed harmoniously  therewith  and  not
    divorced therefrom with a mutilative bearing.  This underlying principle  is
    inter alia embedded in the decision of  this  Court  in  the  Commission  of
    Income Tax, Madras Appellant Versus Ajax  Products  Limited  Respondent  AIR
    1965, Supreme Court 1358.
  • 48.  The High Court, in our estimate, has appropriately appreciated the  law
    and the facts in the right perspective and the impugned  decision  does  not
    call for any interference.  The appeals are dismissed.


                                                                [REPORTABLE]

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL Nos.4181-4182 OF 2015
 
       (ARISING OUT OF SPECIAL LEAVE PETITION(C)NOs. 36311-12/2014

JAGDISH CHAND SHARMA                                          ...….APPELLANT

                                     Vs.

NARAIN SINGH SAINI (DEAD)                                     …..RESPONDENTS
THROUGH HIS LRs & Ors.

                               J U D G M E N T

AMITAVA ROY, J.

      Leave granted.

1.  The genesis of the lingering dissension in the instant  proceeding  lies
in the Will claimed by the appellant herein to have been executed on  22-10-
1973 by Nathu Singh (since deceased),  the predecessor in  the  interest  of
the respondents, thereby bequeathing the property mentioned therein  to  him
(appellant). The judgment and order dated  15-05-2007  passed  in  P  C  No.
249/1980 (re-numbered as PC  No.  160/2006),  by  the  District  Judge,  Tis
Hazari Court, Delhi, granting Letter of  Administration  to  him,  has  been
reversed by the High Court of Delhi by its judgment and order  dated  02-07-
2014 rendered in FAO No. 279 of 2007 as assailed herein.

2.  We have heard Mr. Paras Kuhad, Sr. Advocate for the  appellant  and  Mr.
Daljeet Singh, Senior Advocate for the respondents.

3.   A  brief  outline  of  the  pleaded  facts  would  portray  the   rival
orientations. The  appellant,  to  reiterate,  filed  an  application  under
Section 276 of  the  Indian  Succession  Act  1925  (for  short  hereinafter
referred to as the Act) with the Will annexed, seeking grant  of  Letter  of
Administration.  He stated that the Will had  been  executed  by  Mr.  Nathu
Singh on 22-10-1973, as the  sole  and  absolute  owner  amongst  others  of
Municipal House Tax No. 807 (Private  No.  A/152  to  A/162/1)  situated  at
Sukhdev Nagar, Kotla Mubarakpur, New Delhi, bequeathing  the  same  to  him.
The appellant stated that the testator nursed great love and  affection  for
him for the services  rendered  by  him  and  was  not  favourably  disposed
towards his sons for their disagreeable  conduct  and  activities.   It  was
mentioned that the testator expired on 02-08-1980 at Delhi whereafter,  Shri
Harswaroop  Sharma,  resident  of  41,  Subhash  Market,  Kotla   Mubarkpur,
informed him to receive the Will lying in his custody.  It was,  thereafter,
according  to  the  appellant   that   the   application   for   Letter   of
Administration was  filed.  In  the  petition,  he  averred  the  names  and
particulars  of  the  sons  and  daughters  of  the  deceased  testator  and
disclosed further that the subject matter of the Will  was  located  in  New
Delhi.  That the Will was executed and made in  Delhi  was  also  mentioned.
The appellant did provide and sign a verification declaring the  correctness
of the statements made therein. Further another verification  subscribed  by
Mr. G. C. Kumar, Advocate, Delhi in the capacity of an attesting witness  to
the Will, was also made.

4. On the receipt of the  notice  of  the  proceedings  registered  on  this
petition, objections were filed by Mr. Jaswant Singh  (since  deceased)  son
of the testator and also by his other sons and  daughters  separately.   For
the sake of brevity the  substance  of  the  objections  registered  by  the
children of the testator would be synopsised.

5.  It was pleaded that the  property  said  to  have  been  bequeathed  was
ancestral joint  Hindu  family  property  and  thus,  the  testator  had  no
authority to execute the Will in favour of  the  appellant.   While  denying
the claim that the appellant  did  enjoy  the  love  and  affection  of  the
testator, it was asserted that he (appellant) in fact had been appointed  by
the testator as his rent collector on 11-05-1973  and  was  endowed  with  a
registered power of attorney.  The objectors averred that as  the  appellant
failed to render his sincere services, the power of  attorney  was  revoked.
That the appellant did create  tenancy  in  favour  of  his  wife,  Shrimati
Santosh Kumar Sharma in respect of shop No.F–16 belonging  to  the  testator
without his knowledge for which he (testator) had instituted a suit  against
him (appellant) in the year 1975 for recovery of damages  was  also  stated.
The objectors did further refer to several complaints made by  the  testator
against the appellant for his unsatisfactory services and  misuse  of  power
including misappropriation of rents collected  by  him.   They  also  stated
that the appellant had appeared as a witness in a criminal case against  the
deceased and was also placed under  suspension  by  his  employer  where  he
served as a teacher.

6.   The  respondents/objectors  averred  further  that  the  appellant  was
present at the time of execution of two  other  Wills  by  the  testator  in
favour of one Kisan Lal and Vimala Devi and suggested  that  he  (appellant)
by playing fraud on him (testator) might have got his Will  signed,  in  the
process  of  getting  the  above  two  documents  executed.    In  all,  the
respondents/objectors   assertively   emphasized   that   the   facts    and
circumstances prevailing at the relevant  point  of  time  did  not  at  all
warrant/justify execution of any Will by Mr. Nathu Singh in  favour  of  the
appellant by depriving his children.  They,  in  categorical  terms,  denied
the execution of the Will and also the signatures and the thumb  impressions
of the Mr. Nathu Singh thereon as claimed by the  appellant.   They  averred
as well that the testator was conversant only with Hindi language  and  that
the contents of the Will in English had never been read  over  or  explained
to him.

7.  In his rejoinder, the appellant refuted the respondent’s cavil based  on
jointness of the property. While insisting that the property  was  the  self
acquired asset of the deceased, the  appellant  stated  that  therefrom  the
testator, not only, had conveyed portions by way  of  sale,  but  also,  had
gifted some to his children. He categorically denied the allegation  of  his
disagreeable activities and  misuse  of  powers.   He  instead,  did  impute
fraudulent act of the respondent, Mr. Jaswant  Singh  in  getting  his  name
mutated in the revenue records in place of Mr.  Nathu  Singh  for  which,  a
litigation between the two did ensue. He accused  the  said  respondent  for
being responsible for institution of cases against him by Mr. Nathu Singh.

8.  On these competing pleadings, the following issues were framed:

Whether Mr. Nathu Singh Saini, deceased executed the Will dated  22-10-1973,
validly while possessed of a sound disposing mind?


Relief.


8.1 The parties thereafter adduced oral and documentary evidence.   Whereas,
the appellant examined six witnesses including himself,  Mr.  G.  C.  Kumar,
Advocate (attesting witness), AW 3   Mr.  A.  K.  Jain,  Sub-Registrar,  New
Delhi and AW 5 Mr. Budh Ram (attesting witness), the respondents  offered  8
witnesses in support of their case.  Needless to say, the  appellant  proved
amongst the others the Will, Exhibit A-1.


9.  The learned Trial Court, on its  assessment  of  the  evidence  adduced,
concluded that the appellant could prove  that  the  Will  dated  22-10-1973
Exhibit A -1 was executed by the testator in  a  sound  disposing  state  of
mind  after  fully  understanding  its  contents  and  that  it   was   duly
registered.  Having held so, it observed that the onus of proving  that  the
document was not a genuine  Will  did  shift  to  the  respondents.   On  an
analysis of the evidence offered  by  the  respondents,  the  learned  Trial
Court was of the view that the same was inadequate to displace the  validity
of the Will.  It thus returned a finding  that  the  Will  dated  22-10-1973
Exhibit A-1  had  been  validly  executed  by  the  testator  with  a  sound
disposing  state  of  mind  in  presence   of   two   attesting   witnesses.
Consequently, the Letter of Administration as prayed for, by  the  appellant
vis-à-vis the said Will was granted.


10.  Aggrieved, the respondents preferred appeal being FAO 279/2007  in  the
High Court of Delhi.  By the impugned judgment and  order,  as  adverted  to
herein above, the verdict of the learned  Trial  Court  has  been  reversed.
The High Court on a threadbare evaluation of the pleadings and the  evidence
on record, on the touchstone of the relevant provisions of the Act  and  the
Indian Evidence Act, 1872 (for short hereinafter referred to as  Act  1872),
determined that the Will dated 22-10-1973 had not been  proved  as  per  law
and  that  no  Probate  or  Letter  of  Administration  could  be   granted.
Referring to the testimony of the attesting witnesses, the High  Court  held
that they could not  prove  the  execution  of  the  Will  as  well  as  the
attestation thereof within the meaning of Section  63  (c)  of  the  Act,  a
mandatory legal edict.  The High Court also  dismissed  the  plea  based  on
Section 71 of the Act, 1872  noting  that  the  evidence  of  the  attesting
witnesses produced by the  appellant,  did  not  only  demonstrate  lack  of
intention to attest the Will,  but  also,  rendered  the  execution  of  the
document and their signatures thereon doubtful.  The High Court  noticed  as
well the  circumstances attendant on the bequest to render  it  doubtful  in
view of the suspicious bearing thereof.  It amongst others  noted  therefore
to arrive at this conclusion, that the deceased/testator was versed only  in
Urdu and that the Will was drafted in English, and that  on  the  very  same
day he had executed two other Wills involving different properties with  the
possibility that the Will in question, was got signed,  by  representing  it
to be a part of the other transactions.   The  history  of  past  litigation
between  the  testator  and  the  appellant  involving  allegations  of  his
unauthorized acts and misuse of power also did weigh with the High Court  to
deduce that it was unlikely that the testator would out of natural love  and
affection bequeath his property or any portion thereof to such a person,  by
depriving his own children.  The  decision  of  the  Trial  Court  was  thus
interfered with.


11.  Mr. Kuhad has insistently argued that the impugned judgment  and  order
suffers from apparent misreading of pleadings and  evidence  on  the  record
and is thus liable to be annulled.  Relying in particular on  the  testimony
of the witnesses AW 1 and AW 5, the learned senior counsel  has  urged  that
the execution and the attestation of the Will in  question  have  been  duly
proved as required under Section 63 of the  Act.   Drawing  sustenance  from
Section 71 of Act 1872, the learned senior counsel has maintained that  even
assuming that the testimony of AW 1 and AW 5  was  deficient  vis-à-vis  the
requirement of the Section 63 (c) of the Act, the appellant having  examined
both the attesting witnesses, it  was  permissible  for  him  to  prove  the
execution and attestation of the  Will  by  adducing  other  evidence.   Mr.
Kuhad has thus argued that the evidence of AW 3, Sub-Registrar before  whom,
the Will had been registered on completion of all legal formalities, did  as
well assuredly establish the  execution  and  attestation  of  the  Will  as
required by law and thus  the  High  Court  had  erred  in  holding  to  the
contrary. As the testimony of AW 3, the Sub-Registrar amply proved  all  the
essentials of Section 63 (c)  of  the  Act,  the  learned  Trial  Court  had
validly granted the Letter of Administration, he maintained.   Referring  to
the evidence of AW 1, Mr. G. C. Kumar, Advocate, Mr. Kuhad  urged  that  the
verification signed by him at the foot of  the  application  for  Letter  of
Administration did buttress, the correctness of the  contents  thereof  and,
thus the stray deviations in his version at the trial  ought  to  have  been
discarded as inconsequential. In any case, the casualness of  the  testimony
of the attesting witnesses does not adversely impact upon  the  validity  of
the Will, as such conduct could have been the yield of an endeavour  of  the
respondents to gain them over.  While repudiating  the  conclusions  of  the
High Court inferring denial of execution by  the  attesting   witnesses  and
lack of animus on their part to attest the Will as well  as  the  suspicious
circumstances noticed by it, to be perverse and opposed  to  the  weight  of
the materials on record, the learned senior  counsel  insisted  that  having
regard to the basic requisites of valid   Will  in  law,  namely,  free  and
sound disposing  state  of  mind  of  the  testator,  understanding  of  the
implication of the bequest, admission of execution thereof  by  him/her  and
due attestation thereof, the deductions of the High Court  contrary  thereto
are indefensible and are thus liable to be negated.  Apart  from  contending
that the respondents had failed to  discharge  their  onus  to  prove  their
objections in the  face  of  the  overwhelming  evidence  of  execution  and
attestation of the Will in law, the learned senior counsel  has  urged  that
the High Court had fallen in error as well in  acting  upon  the  additional
evidence adduced before it under Order 41 Rule 27  of  the  Civil  Procedure
Code  (for  short  hereinafter  referred  as  Code),  without  offering   an
opportunity  to  the  appellant  to  counter  such  prayer.   The  following
decisions were relied upon to reinforce the above contentions.

  AIR 1955 SC 346 Bhaiya Guruji Dutt Singh Vs Gangotri Dutt Singh, AIR  1959
SC 443 H Venkatachala Iyengar Vs B N Thimmajamma  and  Others,(1974)  2  SCC
600 Kewal Pati (Smt) Vs State of UP and Others, (1995) 4  SCC  459  Surendra
Pal and Ors. Vs. Dr. (Mrs.)Saraswati Arora and Anr.,(2003) 2  SCC  91  Janki
Narayan  Bhoir  Vs.  Narayan  Namdeo  Kadam,  (2005)  8  SCC  67   Pentakota
Satyanarayana and Ors. Vs. Pentakota Seetharatnam and  Ors.,  (2013)  7  SCC
490 M.B. Ramesh (D) by LRs. Vs. KM Veeraje Urs (D) by LRs and Ors.

12.  Per contra, Mr. Singh has argued that it being apparent on the face  of
the records that neither the execution  nor  the  attestation  of  the  Will
involved had been proved by any of the witnesses, the impugned  judgment  is
unassailable and thus the instant petition is  liable  to  be  dismissed  in
limine.  The findings recorded  by  the  High  Court  being  founded  on  an
indepth scrutiny of the materials on  record,  are  unmistakably  conclusive
and thus this Court would not embark upon  a  fresh  appraisal  thereof,  he
maintained.  The learned senior counsel by referring to the evidence of  the
witnesses AW 1, AW 5 in particular has  emphatically  pleaded  that  as  the
appellant had failed to prove either the execution  or  the  attestation  of
the Will, Section 71 of the Act of 1872 is inapplicable to the facts of  the
present case, and thus the testimony of AW 3 is wholly irrelevant.   Without
prejudice to this, the learned senior counsel has urged  that  the  evidence
of AW 3 as well falls short of the requirements of Section  63  (c)  of  the
Act and thus, cannot be invoked to the advantage of the appellant.   As  the
evidence of AW 1 and AW 5 does not attract the contingencies  enumerated  in
Section 71 of Act 1872, the version of AW 3, in any view of the  matter,  is
of no avail to the  appellant,  he  asserted.  The  learned  senior  counsel
maintained that even de hors the additional evidence laid  before  the  High
Court under Order 41 Rule 27 of the  Code,  the  findings  recorded  in  the
impugned judgment and order are sustainable in law and on facts and thus  no
interference therewith is called for.  Mr. Singh  relied  on  the  decisions
hereunder to endorse his arguments.

(1977) 1 SCR 925 Smt. Jaswant Kaur Vs Smt. Amrit Kaur  and  Ors.,  (2001)  9
SCC 503 Neki Ram and Ors. Vs. Ama Ram Godara  and  Ors.,  (2003)  2  SCC  91
Janki Narayan Bhoir Vs. Narayan Namdeo Kadam.

13.  The contentious pleadings and  the  assertions  based  thereon  in  the
backdrop of the evidence as a whole have been  duly  analysed  by  us.   The
competing perspectives notwithstanding, the purport and play of  Section  63
of the Act read with Sections 68  and  71  of  Act  1872  as  deciphered  by
various judicial enunciations would have a decisive bearing on  the  process
of resolution of the irreconcilable issues that demand to be addressed.   It
would thus be apt, nay,  imperative  to  refer  to  these  legal  provisions
before  embarking  on  the  appreciation  of  the  evidence  to  the  extent
indispensible.  Section 63 of the Act and Sections 68  and  71  of  the  Act
1872, are thus extracted hereunder for ready reference.

 Indian Succession Act, 1922

 “63. Execution of unprivileged Wills.- Every testator, not being a  soldier
employed in an expedition or engaged in actual warfare, 1[or  an  airman  so
employed or engaged,] or a mariner at sea, shall execute his Will  according
to the following rules:-

(a) The testator shall sign or shall affix his  mark  to  the  Will,  or  it
shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature  of  the  person
signing for him, shall be so  placed  that  it  shall  appear  that  it  was
intended thereby to give effect to the writing as a Will.

 (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 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 by present  at  the  same  time,
and no particular form of attestation shall be necessary.

Indian Evidence Act 1872

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 its execution, if there be an  attesting  witness  alive,
and subject to the process of the Court and capable of giving evidence;

Provided that it shall not be necessary to  call  an  attesting  witness  in
proof of the execution of any document, not being a  Will,  which  has  been
registered in accordance with the  provisions  of  the  Indian  Registration
Act, 1908 (16 of 1908), unless its  execution  by  the  person  by  whom  it
purports to have been executed is specifically denied.

71. Proof when attesting witness  denies  the  execution.-If  the  attesting
witness denies or does not recollect the  execution  of  the  document,  its
execution may be proved by other evidence.

14.  As would be evident from the contents of Section 63 of the Act that  to
execute the Will as contemplated therein, the testator would  have  to  sign
or affix his mark to it or the same has to be signed by  some  other  person
in his presence and on his direction. Further the signature or mark  of  the
testator or the signature of the person signing for him has to be so  placed
that it would appear that it was intended thereby  to  give  effect  to  the
writing as Will.  The Section further mandates that the Will shall  have  to
be attested by two or more witnesses each of  whom  has  seen  the  testator
sign or affix his mark to it or has seen some other persons sign it, in  the
presence and on the direction of the testator,  or  has  received  from  the
testator, personal acknowledgement of a signature or mark, or the  signature
of such other persons and that each of the witnesses has signed the Will  in
the presence of the testator.  It is, however, clarified that it  would  not
be necessary that more than one witness be present  at  the  same  time  and
that no particular form of attestation would be necessary.

15.   It  cannot  be  gainsaid  that  the  above  legislatively   prescribed
essentials of a valid execution and attestation of a Will under the Act  are
mandatory in  nature,  so  much  so,  that  any  failure  or  deficiency  in
adherence  thereto  would  be  at  the  pain   of   invalidation   of   such
document/instrument of disposition of property.

15.1.  In the evidentiary context Section 68 of the Act  1872  enjoins  that
if a document is required by law to be attested, it would  not  be  used  as
evidence unless one attesting witness, at least, if alive,  and  is  subject
to  the  process  of  Court  and  capable  of  giving  evidence  proves  its
execution.  The proviso attached to this Section  relaxes  this  requirement
in case of a document,  not  being  a  Will,  but  has  been  registered  in
accordance with the provisions of the Indian Registration  Act  1908  unless
its execution by the person by whom it purports to have  been  executed,  is
specifically denied.

15.2. These statutory provisions, thus, make it  incumbent  for  a  document
required by law to be attested to have its execution proved by at least  one
of the attesting witnesses, if alive, and  is  subject  to  the  process  of
Court  conducting  the  proceedings  involved  and  is  capable  of   giving
evidence.  This rigour is,  however,  eased  in  case  of  a  document  also
required to be attested but not a Will, if the same has been  registered  in
accordance with the provisions of the Indian Registration Act,  1908  unless
the execution of this document by  the  person  said  to  have  executed  it
denies the same.  In  any  view  of  the  matter,  however,  the  relaxation
extended by the proviso is of no avail qua a Will.  The proof of a  Will  to
be admissible  in  evidence  with  probative  potential,  being  a  document
required by law to be attested by  two  witnesses,  would  necessarily  need
proof of its execution through at least one of the attesting  witnesses,  if
alive, and  subject to the process of the Court concerned and is capable  of
giving evidence.

15.3  Section 71 provides, however, that if the attesting witness denies  or
does not recollect the execution of  the  document,  its  execution  may  be
proved by other evidence. The interplay of the  above  statutory  provisions
and the underlying legislative objective would be  of  formidable  relevance
in  evaluating  the  materials  on  record  and  recording  the  penultimate
conclusions.  With this backdrop, expedient it would be, to  scrutinize  the
evidence adduced by the parties.

15.4 As hereinbefore mentioned, the appellant has endeavoured to  prove  the
execution and attestation of the Will, Ex. A–1 through AW 1 Mr. G. C.  Kumar
and AW 5 Mr. Budh Ram. He has examined as well AW 3  Mr.  A.  K.  Jain,  Sub
Registrar, New Delhi before whom the Will was registered on  the  very  same
day of its execution i.e., 22-10-1973.

15.5. Be that as it may, AW  1  Mr.  Kumar  deposed  on  oath  that  he  was
enrolled as a lawyer in or about 1971 and used to assist his father who  was
a deed writer in Urdu language.   The witness stated that he  used  to  come
to Tis Hazari Court for attending his cases.  He testified to have seen  the
Will Ex. A-1 which he claimed had  been  drafted  by  him.    He  failed  to
remember as to whether the testator, Mr. Nathu Ram Singh  had  come  to  his
father in his presence or that his father  had  given  him  instructions  to
write the Will.  The witness even failed to remember whether  the  Will  had
been given to him by his father or to  the  testator.   He  also  could  not
recall as to whether he was present when the testator had signed  the  Will.
The witness, however, admitted that Ex. A-1 did bear his  signatures  as  an
attesting witness but deposed  that  due  to  lapse  of  time,  he  did  not
remember whether any other person was also  present  and  had  attested  the
document when he had signed it.   He, however, stated to have  been  present
in the office of the Sub Registrar when the Will, Ex. A-1 was presented  for
registration. He also admitted to have signed the document on  the  backside
thereof in the presence of the clerk of  the  office.   The  witness  stated
that he had also identified  the  testator  before  the  Sub  Registrar  but
clarified that it was as per  the  prevalent  practice  for  an  identifying
witness to do so.   He added by stating that  he  had  signed  the  document
only in that capacity.   The witness deposed further, that he could not  say
whether the thumb impression and the signatures of the testator at the  time
of the registration and appearing on the back of page one of  the  Will  had
been obtained in his presence or not.   He  even  failed  to  recall  as  to
whether the contents of the Will had been read over  and  explained  to  the
testator by him or by his father.

15.6  This witness was declared hostile and was cross-examined on behalf  of
the appellant in course whereof he deposed that he could not say whether  he
had signed the Will in  presence  of  the  testator.   When  confronted,  he
admitted to have signed the certificate at the foot of  the  application  in
Section 276 of the Act praying for grant of  Letter  of  Administration  but
denied to have done so as an attesting  witness  of  the  Will.   He  stated
instead that he had put his signatures as the appellant  wanted  him  to  do
so.  He even denied to  have  read  the  contents  of  the  certificate.  He
refuted the suggestion that he had made a false  statement  in  Court  being
won over by the respondents.

16.  AW 2 Shri. Harswaroop has stated on oath that in  November,  1973,  the
testator had handed over to him one Will with a direction to deliver  it  to
the appellant upon his death.   According to this witness, he did  so  after
the demise of Mr. Nathu Singh and handed over the  Will  to  the  appellant.
The witness stated to have seen the Will Ex. A-1, bearing the  signature  of
Mr. Nathu Singh at several places.  He claimed of being conversant with  the
handwriting and signature of the  Mr.  Nathu  Singh.   Admittedly,  however,
this witness  is  neither  one  to  the  execution  of  the  Will,  nor  the
attestation thereof as obligated by law.

17.  Before reverting to AW 3 in the ordinary sequence, the testimony of  AW
5 figuring in the chain of attestation as presented by the  appellant  would
be referred to. This witness,  Mr.  Budh  Ram  claimed  to  have  known  the
deceased/testator.  He stated on oath that he had seen the document Ex.  A-1
and identified his signatures  thereon.   He  deposed  to  have  signed  the
document in presence of the testator. He, however, hastened to add  that  he
had not seen the testator signing the  Will.  He  denied  to  have  appeared
before the Sub Registrar or to have identified the testator before the  said
authority.  He stated that he had signed the document  outside  the  office.
Though, he asserted that testator was mentally alert on the  date  on  which
he (witness) had signed the Will, he clarified that he did not do so on  the
asking of the testator.  The witness, however, admitted the presence of  the
testator at that time.

17.1  In cross-examination, the witness disclosed  that  the  appellant  was
also present on the date on which he had signed the  document  and  that  he
did not know the contents of the said document. He stated  further  that  he
had not been told that any Will was executed by Mr. Nathu Singh and that  he
was to attest it.  Noticeably, this witness had  not  been  declared  to  be
hostile.

18.  AW 3 Mr. A. K. Jain who at the relevant time  was  the  Sub  Registrar,
New Delhi, on oath, stated that the Will Ex. A-1 had been  presented  before
him  for  registration  on  22-10-1973.   According  to  this  witness,  the
testator was identified before him by one Mr. Budh Ram and Mr. G. C.  Kumar,
Advocate.  The witness stated that these persons did sign  the  document  in
his presence as identifying witnesses on the back of page No. 1 of Ex.  A-1.
He deposed as well that the testator  was  read  out  the  contents  of  the
document and was asked as to whether he was executing the Will  himself  and
that on his acknowledgement  in  the  affirmative,  he  (witness)  made  his
endorsement  on  the  document  in  his  own  hand.    While   proving   his
endorsement, the  witness  iterated  that  the  testator  had  admitted  the
execution of the Will and also proved his (testator)  signatures  and  thumb
impressions thereon.

18.1   In his cross-examination, the witness stated that  he  did  not  know
the testator personally and that he had made his endorsements  on  the  Will
in the capacity of a registering authority only.  He admitted  that  on  the
very same date, another document purporting to be a  Will  executed  by  Mr.
Nathu Singh was also presented for registration for  which  the  identifying
witnesses had been the same.

19.  The testimony of AW 4 Mr. Ramchander Sharma is to the effect  that  the
appellant had borne the expenses for the firewood of  the  funeral  pyre  of
the deceased Nathu Singh.  The testimony of AW 7 Mr. M. S. Santosh Goel  and
AW 8 Mr. Satish Kumar being insignificant vis-à-vis issues involved  is  not
necessary to be dilated upon.

20. AW 6 Mr. Jagdish Chander Sharma, appellant deposed that  he  had  joined
the deceased Mr. Nathu Singh, in the year 1952 on the recommendation of  his
brother-in-law.  He stated that the  deceased  entrusted  him  the  duty  to
realise rent of his property and also to look after the  matters  pertaining
to litigation in connection  therewith.  The  witness  stated  that  in  the
process, he was also made the attorney of the deceased and  while  realising
rent used to accompany  Mr.  Jaswant  Singh,  his  (Nathu  Singh)  son.   He
referred to some differences between the father and the son with  regard  to
alleged wrong doings of the latter qua  immovable  properties  resulting  in
institution of a  suit  by  Mr.  Nathu  Singh  against  Mr.  Jaswant  Singh.
According to  this  witness,  Mr.  Jaswant  Singh  was  inimically  disposed
towards him for which he made a complaint against him in his department  for
which he was placed under  suspension.   He  stated  that  Mr.  Nathu  Singh
thereafter, in the interest of his job, cancelled his power of attorney  but
asked him to look after the property and to realise  the  rents.   According
to the witness, Mr. Jaswant Singh out of his persisting animosity  caused  a
raid to be conducted in his house, and after the demise of Mr.  Nathu  Singh
did openly intimidate him of dire consequences.  He denied to  have  visited
the office of the Sub Registrar on 22-10-1973 and insisted that AW 1 Mr.  G.
C. Kumar, Advocate had signed the certificate of the petition under  Section
276 of the Act.  He also asserted that AW 1  had  attested  the  Will  after
seeing the same.  According to this witness, the relationship of  Mr.  Nathu
Singh with his sons was strained as they had been endeavouring to take  over
the possession of his properties.  The witness identified the  signature  of
the testator on the Will Ex. A-1.

21.  In his detailed cross-examination, the witnesses  referred  to  several
legal proceedings, civil and  criminal  instituted  by  the  testator  which
according to him, however, did fizzle out with  time  without  yielding  any
adverse verdict against him.  While mentioning that Mr. Nathu Singh used  to
dispose of his properties by executing Wills,  the  witness  also  mentioned
about litigations between him and his son Mr.  Jaswant  Singh.  He  admitted
that at the time of death of the testator, his  wife,  sons,  daughters  and
several grand children were alive.  In categorical  terms,  he  stated  that
the testator had no quarrel with his wife and daughters.  He also  mentioned
about gift of properties by Mr. Nathu Singh to his sons.

22.  The testimony of RW 1 Mr. Ramesh Kumar, RW 2 Mr. M. S.  Rao  and  RW  4
Mr. Ramesh Chander Sharma being not of  any  determinative  significance  is
not being referred to. RW 3 Mr. Narayan Singh Saini,  son  of  the  testator
deposed that his(testator) family comprised of his wife,  Smt.  Chanderwati,
three sons and three daughters.  He stated that during the life time of  the
testator, he had executed three separate gift deeds  conveying  property  to
each of his sons.  That Mr. Nathu Singh had a host  of  grand  children  was
also stated by this witness.  He mentioned in particular that  the  testator
had a very cordial relationship with the children till he died  so  much  so
that they along with the grand children used to  congregate  on  all  family
functions.  He averred that the testator had appointed the appellant as  his
attorney for collecting rent from his tenants.  Thereby,  the  testator  had
also authorized the appellant  to  prepare  documents  with  regard  to  the
properties which he intended to sell from time to time. The witness  deposed
that the testator eventually had to cancel the  power  of  attorney  as  the
appellant was found indulging in interpolation  of   tenancies  without  his
consent and with malafide  intention  misappropriated  his  properties.   He
stated further that at the time of his death, the testator was  aged  ninety
years. He reiterated that the Will  in  question  was  deceitfully  inserted
amongst other documents to procure the signature of the testator.

23.  The version of RW 5 Mr. Gulab Chand and RW 6 Mr. Bhupesh Gupta is  also
of not any consequence vis-à-vis the issues involved. RW 7 Mr.  Ram  Chander
Saini deposed on oath that he used to represent Mr. Nathu Singh  in  various
legal proceedings  including  one  instituted  against  the  appellant.   He
denied the suggestion that Mr. Nathu Singh had a very  cordial  relationship
with the appellant.

24.  RW 8 Mr. Rajinder Singh, grandson of Mr. Nathu Singh, in his  statement
on  oath  expressed  his  ignorance  about  any   litigation   between   his
grandfather and his father Mr. Jaswant Singh.

25.  The fascicule of the evidence viewed as hereinabove qua  the  execution
and the attestation of the Will  thus  can  be  compartmentalised  into  two
slots. The first comprising of the testimony of AW 1 Mr.  G.  C.  Kumar  and
Mr. Budh Ram and the other of AW 3  Mr.  A.  K.  Jain,  Sub  Registrar,  New
Delhi.

26.  Evident it would be from the deposition of AW 1 that  though  he  owned
to be the author of the document, having drafted it,  he  could  not  recall
whether he did so on the instruction of the testator. He  did  not  remember
as well as to whether the Will had been handed over by him to his father  or
the testator.  He failed to recollect also whether he was present  when  the
testator had signed  the  Will,  Ex.  A-1.  Though,  he  admitted  that  the
document did bear his signatures as  an  attesting  witness  at  two  places
being point “A” and “B”, he could not recall whether  there  was  any  other
person also present and had similarly attested  the  document  when  he  had
signed at point “A”.  He was categorical in stating that he was  present  in
the  office  of  the  Sub  Registrar  when  the  Will  was   presented   for
registration and had signed on the back page thereof but clarified  that  he
did so only as an identifying witness. He could not say as  to  whether  the
signatures and thumb impressions of the testator at point “Y” and  “Y–1”  on
the back page of the Will had been obtained in  his  presence  or  not.   He
also could not state whether the contents of the Will  were  read  over  and
explained to the testator by him or his father.  He  was  candid  to  assert
that he was not sure as to whether he had signed the  Will  in  presence  of
the testator or not or whether the testator had signed the document  in  his
presence.  He was unequivocal in stating that he had signed the  certificate
at the foot of the petition for grant of Letter of Administration as he  was
asked to do so by the appellant and he did not do so in the capacity  of  an
attesting witness to the Will.  He even denied  to  have  gone  through  the
contents of the certificate before subscribing thereto.

27.  The evidence of AW 1, as a whole is, therefore clearly deficient vis-à-
vis with the requirements of Section 63 (c)  of  the  Act.   Noticeably,  he
does not deny either the  execution  of  the  Will  or  has  not  failed  to
recollect the said event.  In clear terms, this witness stated  that  though
he had signed the document, he was not sure that he did so in  the  presence
of any other person attesting the same.  He could not also  remember  as  to
whether he was present when the testator had signed the Will.  He  clarified
in no uncertain terms that  his  signatures  on  the  Will  before  the  Sub
Registrar were only as an identifying witness. His is thus not a  stance  of
either denial of the execution of the Will or of failure to  recollect  such
execution as contemplated in Section 71 of the Act 1872.

28.  To cap it all, he even endeavoured to represent that he had signed  the
certificate at the foot of the application for the Letter of  Administration
not voluntarily but on  being  insisted  upon  by  the  appellant.   He  was
categorical in his testimony to the  effect  that  he  had  not  signed  the
certificate acknowledging the fact that he was an  attesting  witness.   The
evidence of AW 1 Mr. G. C. Kumar, Advocate thus does not inspire  confidence
to be acted upon in proof of the execution and attestation of the Will,  EX.
A-1.

29.  AW 5 Mr. Budh Ram was categorical in owning his signatures on the  Will
at points “C” AND “Y-2” and claimed to have to put the same in the  presence
of the testator.  He, however, was unhesitant in testifying that he had  not
seen the testator signing the document at the points “B”, “Y-1”.  He  denied
to have appeared  before  the  Sub  Registrar  or  to  have  identified  the
testator before the said authority.  His unambiguous statement  on  oath  is
that he had signed the document outside the office  of  the  Sub  Registrar.
His evidence as well cannot be construed to be one of  denial  of  execution
of the Will. This witness, as his evidence would clearly  demonstrate,  also
did neither falter nor, was equivocal so as to suggest  that  he  failed  to
recollect the execution of the  document.   The  conditions,  precedent  for
application of  Section  71  of  the  Act  1872,  therefore,  are  also  not
available in the context of the evidence of this witness.

29.1  On a cumulative assessment of the evidence of AW 1 and AW  5,  we  are
of the unhesitant opinion that Section 71 of the Act, is not  invocable   in
the  facts  and  circumstances  of  the   case   so   as   to   permit   the
propounder/appellant to resort to any other evidence to prove the  execution
and attestation of the Will involved as comprehended  therein.  The  account
of the relevant facts bearing on the execution and attestation of  the  Will
as provided by these witnesses  though  is  thoroughly  inadequate  qua  the
prescriptions of Section 63 (c) of the Act does  not  amount  to  denial  of
execution or failure to recollect the said event  as  contemplated  in  this
provision.

30.  The above notwithstanding, expedient it would be, in the  face  of  the
protracted controversy, to examine as well the evidence of AW 3, Mr.  A.  K.
Jain Sub Registrar, New Delhi, refuge whereof has been  sought  for  by  the
appellant under Section 71 of the Act, in the alternative.

30.1  This witness, to reiterate, was the Sub Registrar at  Asaf  Ali  road,
New Delhi on the date on which, as he  had  testified,  the  Will  was  laid
before him for registration. Incidentally, it was on the very same  date  of
its execution i.e. 22-10-1973. He deposed that the testator Mr. Nathu  Singh
was identified before him by AW 1 Mr. G. C. Kumar, Advocate, AW  1  and  Mr.
Budh Ram AW 5. According to this witness, these two  persons  did  sign  the
document in his presence as identifying witnesses on the back of page No.  1
thereof.  He stated further that the contents of the Will were read  out  to
the testator and he was  asked  as  to  whether  he  did  execute  the  same
himself.  The witness deposed that to this,  the  testator  acknowledged  in
the affirmative whereupon he  (witness)  endorsed  the  same.   The  witness
proved his endorsements at the portions encircled “S” and  “S-1”.   He  also
stated that the testator had signed and put his thumb marks as “Y”  and  “Y-
1” in his presence in acknowledgement of the execution of the Will  by  him.

30.2   In cross-examination, the witness  admitted  that  he  had  made  his
endorsements  in  the  capacity  of  a  registering  authority  only.  While
admitting that on the very same date another document, purporting  to  be  a
Will executed by the same testator had also been presented  before  him  for
registration, he admitted that both the identifying witnesses  of  the  Will
involved were also the identifying witnesses of the other Will.

31.  A plain perusal of the Will presented in course of the arguments  would
reveal that the space therein meant to mention  the  age  and  the  date  of
execution  thereof  had  remained  vacant   till   it   was   produced   for
registration.  This was though as claimed by  the  appellant,  the  document
had already been executed by  the  testator  by  putting  his  signature  at
points “B” on both the pages along with  the  signatures  of  the  attesting
witnesses AW 1 and AW 5 as well. On the back of page  No.  1  of  the  Will,
there are two signatures and thumb impressions “Y” and “Y-1” said to  be  of
the testator beneath the  stamped  endorsements  in  the  official  proforma
signed by AW 3.  On the same page, the signature of AW 1 Mr.  G.  C.  Kumar,
Advocate, and thumb impression of AW  5  Budh  Ram  are  also  available  at
points “X” and “Y-2” respectively.

31.1 Noticeably, though the official endorsements, as above seem to  suggest
that those signified admission of execution of the document by the  testator
before AW 3, the evidence of this witness on oath, does  neither  prove  nor
demonstrate in unmistakable terms that both the  identifying  witnesses  had
seen  the  testator  put  his  signatures  and  thumb  impressions  for  the
execution of the Will.  His testimony  also  does  not  establish  that  the
witnesses AW 1 and AW 5 had put their signature/thumb impression before  the
Sub Registrar in presence of the testator.  This  assumes  significance  not
only as per the non-relaxable mandate of Section 63 (c) of the Act but  also
for the version of AW 1 that he had signed  the  document  at  the  time  of
registration only as an identifying witness and that he did not remember  as
to whether the thumb impressions and the signatures of the testator  at  “Y”
and “Y-1” were obtained in his presence or not.  The testimony of  AW  5  to
the effect that his signature as well as thumb impression  at  “Y-2”  though
made in presence of the testator  was  taken  outside  the  Sub  Registrar’s
office is significant as the same, if accepted, would mean that he  had  not
seen the testator signing the Will  either  at  point  “B”  or  putting  his
signature and thumb impression at “Y” and “Y-1” on the backside of page  No.
1 of the Will.  To reiterate, he stated on oath that he had  not  identified
the testator before the Sub Registrar. Evidently, AW 3 was  not  present  at
the time of initial execution of the Will and thus could not have  witnessed
the said event.

32.  In the overall  perspective  thus,  the  testimony  of  AW  3,  in  our
estimate, does not conform to the imperatives of the Section 63 (c)  of  the
Act. His narration on affirmation at the trial, does not  either  by  itself
meet the essentialities of Section 63 (c) of the Act or can be construed  to
be a supplement of the evidence of AW 1 and AW 5 to  furnish  the  proof  of
execution and attestation of the Will as enjoined by law.

33.  The evidence of AW 1, AW 3  and  AW  5,  anlaysed  collectively  or  in
isolation, does not evince animo  attestandi,  an  essential  imperative  of
valid attestation of a Will. As Section 71 of the Act, 1872 by no means  can
be conceived of to be a diluent of the rigour of Section 63 of the Act,  the
testimony of  these  witnesses  fall  short  of  the  probative  content  to
construe Ex. A-1 to be a validly executed and attested Will as envisaged  in
law.

34.  In  Bhaiya  Guruji  Dutt  Singh  (supra),  the  testimony  of  the  two
attesting  witnesses  was  found  wanting  in  credibility  for  which   the
propounder did fall  back  on  the  admission  of  the  testator  about  the
execution of the Will involved at the time of registration  in  presence  of
two persons Mr. Mahadeo Prasad and  Mr.  Nageshur,  who  also  had  appended
their signatures at the foot of the endorsement of the Sub Registrar.  These
signatures were contended to be enough  to  prove  due  attestation  of  the
Will.  It was held that mere signatures of these two  persons  appearing  at
the foot of the endorsement of registration could not be  presumed  to  have
been made as attesting witnesses or in the capacity of  attesting  witnesses
and absence of animo attestandi was underlined.

35. This Court in H. Venkatachala Iyengar  (supra)  while  dilating  on  the
statutory requisites of valid execution of  a  Will,  observed  that  unlike
other documents this testamentary instrument speaks from the  death  of  the
testator and by the time when it is produced before a  Court,  the  testator
had departed from his temporal state and is not available to own  or  disown
the same. It was thus emphasised that this  does  introduce  an  element  of
solemnity in the decision  on  the  question  as  to  whether  the  document
propounded is proved to be the last  Will  and  testament  of  the  departed
testator.  In this context, it was emphasised that the propounder  would  be
required to prove by satisfactory evidence that (i) the Will was  signed  by
the testator, (ii) he at the relevant time was  in  a  sound  and  disposing
state  of  mind,  (iii)  he  understood  the  nature  and  effect   of   the
dispositions, and that (iv) he put his signature to the document of his  own
free will.  It was observed that 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, the court would be justified in making a finding in  favour
of the propounder signifying that he/she had been able to discharge  his/her
onus to prove  the  essential  facts.   The  necessity  of  removal  of  the
suspicious circumstances attendant on the execution of  the  Will,  however,
was underlined as well.  That no hard and fast or  inflexible  rule  can  be
laid  down  for  the  appreciation  of  the  evidence  to  this  effect  was
acknowledged.

36.  That a propounder has to demonstrate that the Will was  signed  by  the
testator and that he was at the relevant time in a sound disposing state  of
mind and that he understood the nature and effect  of  the  disposition  and
further that he had put his signature to the testament on his own free  will
and that he had signed it in presence of two witnesses who had  attested  it
in presence and in the presence of each other, in  order  to  discharge  his
onus to prove due execution of the said  document  was  reiterated  by  this
Court amongst others in Surendra Pal and Ors. (supra) It was  held  as  well
that though on the proof of the above facts,  the  onus  of  the  propounder
gets discharged, there could be situations where the  execution  of  a  Will
may be shrouded by suspicious  circumstances  such  as  doubtful  signature,
feeble mind  of  the  testator,  overawed  state  induced  by  powerful  and
interested  quarters,  prominent  role   of   the   propounder,   unnatural,
improbable and unfair bequests indicative of lack of  testator’s  free  will
and mind etc.  In all such eventualities, the conscience of  the  Court  has
to  be  satisfied  and  thus  the  nature  and  quality  of  proof  must  be
commensurate to such essentiality so much so to remove any  suspicion  which
may be entertained by any reasonable  and  prudent  man  in  the  prevailing
circumstances. It was propounded further that  where  the  caveator  alleges
undue influence, fraud and coercion, the onus, however, would be on  him  to
prove the same, and on his failure, probate of the Will must necessarily  be
granted if it  is  established  that  the  testator  had  full  testamentary
capacity and had in fact executed it validly with a free will and mind.

37. In Jaswant Kumar (supra) this Court held  that  suspicion  generated  by
the distrustful circumstances cannot be removed by  the  mere  assertion  of
the propounder that the Will bears the signature of  the  testator  or  that
the testator was in a sound and disposing state of mind and memory when  the
Will was made or that those like the wife and children of the testator,  who
would normally receive their due share  in  the  estate,  were  disinherited
because the testator might have had seen reasons for excluding them. It  was
underscored that  it  was  obligatory  for  the  propounder  to  remove  all
legitimate suspicions before the document could  be  accepted  as  the  last
Will of the testator.

38.  In Ravindra Nath Mukharji and Another (supra)  this  Court  entertained
the view that the, witnesses to the Will, if interested for  the  propounder
is  perceived  to  be  a  suspicious  circumstance,  the  same  would   lose
significance if the document  is  registered  and  the  Sub  Registrar  does
certify that the same had been read over to the executor  who  on  doing  so
admits the contents.

39.  In Pentakota Satyanarayan and Others (supra) the testator  P.  Mr.  Ram
Murthi had admitted  the  execution  of  the  Will  involved.  He,  however,
expired while the  suit  was  pending.  The  Will  was  registered  and  the
signature of the testator was identified by two witnesses whereupon the  Sub
Registrar had signed the document.  In this textual  premise,  it  was  held
that the signatures of  the  registering  officer  and  of  the  identifying
witnesses affixed to the registration endorsement did amount  to  sufficient
attestation within the meaning of the Act.  It was held  as  well  that  the
endorsement of the Sub Registrar that the executant had acknowledged  before
him the execution, did also amount to attestation. The facts  revealed  that
the Will was executed before the Sub Registrar on  which  the  signature  of
the  testator  as  well  as  signature  and  the  thumb  impression  of  the
identifying witnesses were taken  by  the  said  authority,  whereafter  the
latter  signed  the  deed.   In  general  terms,  it   was   observed   that
registration of the Will per se did not dispense with the  need  of  proving
its execution and the attestation in the manner as provided  in  Section  68
of the 1872 Act. It was enunciated  as  well  that  execution  consisted  of
signing a document, reading it over and understanding and completion of  all
formalities necessary for the validity of the act involved.

39.1 The facts as obtained in this decision are distinguishable  from  those
in hand and are incomparable on many counts.  No anology can be  drawn  from
this case to conclude that the testimony of AW 3 even if read with  that  of
AW 1 and AW 5 can sum up to prove valid execution  and  attestation  of  the
Will as stipulated by Section 63 (c ) of the Act.

40.  Janki Narayan Bhoir (supra) witnessed a fact  situation  where  one  of
the attesting witnesses of the Will, though both were alive at the  relevant
time, was produced to prove  the  execution  thereof.   The  scribe  of  the
document was also examined. The attesting witness deposed that  he  had  not
seen the other witness present at the time of  execution  of  the  Will  and
further he did not remember as to whether he  along  with  the  latter  were
present either when the testator had put his signature on the Will  or  that
he had identified the person  who  had  put  the  thumb  impression  on  the
document.  The issue raised before this Court was that the evidence  of  the
said attesting witness had failed to establish the attestation of  the  Will
by the other attesting witness who though available had  not  been  examined
and thus the Will was  not  proved.   The  contrary  plea  was  that  though
Section 63 of the Act required  attestation  of  a  Will  by  at  least  two
witnesses, it could be proved by examining  one  attesting  witness  as  per
Section 68 of the 1872 Act and by  furnishing  other  evidence  as  per  the
Section 71 thereof.  While dwelling on the respective prescripts of  Section
63 of the Act and Sections  68  and  71of  Act  1872  vis-à-vis  a  document
required by law to  be  compulsorily  attested,  it  was  held  that  if  an
attesting witness is alive and is capable of giving evidence and is  subject
to the process of the Court, he/she has to be  necessarily  examined  before
such document can be used in evidence. It was expounded that on  a  combined
reading of Section 63 of the Act and Section 68 of  the  1872  Act,  it  was
apparent that mere proof of signature of the testator on the  Will  was  not
sufficient and that attestation thereof was also to be  proved  as  required
by Section 63 (c) of the Act.   It  was,  however,  emphasised  that  though
Section 68 of  the  1872  Act  permits  proof  of  a  document  compulsorily
required to be attested by one attesting witness,  he/she  should  be  in  a
position to prove the execution thereof and if it is a  Will,  in  terms  of
Section 63 (c) of the Act, viz, attestation by two  attesting  witnesses  in
the manner as contemplated therein.  It was exposited that if the  attesting
witness examined besides his attestation does not prove the  requirement  of
the attestation of the Will by the other witness, his testimony  would  fall
short of attestation of the Will by at least two witnesses  for  the  simple
reason that the execution of the Will does not merely mean signing of it  by
the testator but connotes fulfilling the proof of all  formalities  required
under Section 63 of the Act. It was held that where  the  attesting  witness
examined to prove the Will under Section 68 of 1872 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.

 41.  Qua Section 71 of 1872 Act, it was  held  to  be  in  the  form  of  a
safeguard to the mandatory provision of Section 68 to cater to  a  situation
where it is not possible to prove the execution of the Will by  calling  the
attesting witnesses though alive i.e. if the witnesses  either  deny  or  do
not recollect the execution of the Will. Only in these contingencies by  the
aid of Section  71,  other  evidence  can  be  furnished.   It  was  further
clarified that Section 71 of Act 1872 would have no application  to  a  case
where one attesting witness who alone had been summoned fails to  prove  the
execution of the Will and the other attesting witness  though  available  to
prove the execution of the same, for reasons best  known,  is  not  summoned
before the Court.

42.  This Court underlined that Section 71 of the  Act  1872  was  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 and  cannot  be  let
down without any other opportunity of  proving  the  due  execution  of  the
document by other evidence. That, however, Section 71 cannot be  invoked  so
as to absolve the party  of  his  obligation  under  Section  68  read  with
Section 63 of the Act and to liberally allow him, at his will or choice,  to
make available or not, necessary witness otherwise  available  and  amenable
to jurisdiction of the Court, was highlighted in  emphatic  terms.  That  no
premium upon such omission or lapse so as to enable him to give a go-bye  to
the  mandates  of  law  relating  to  proof  of  execution  of  a  Will,  as
contemplated by these statutory provisions, was  precisely  underlined.   In
the facts and circumstances of that case, as the  second  attesting  witness
though available had not been summoned, the benefit of  Section  71  of  Act
1872 was not extended.  The Will was thus held to  be  not  proved  for  the
failure of the  attesting  witness  so  produced,  to  testify  as  per  the
ordainment of Section 63 (c) of the Act.

43.  In M. B.  Ramesh  (dead)  by  LRS  (supra),  one  Smt.  Nagammanni  had
executed a Will.  One of the attesting witnesses P. Basavaraje Urs,  in  his
evidence, stated about the presence of the other witness (naming  him),  the
testatrix, himself and one Sampat Iyengar to be present when  the  Will  was
written.  He deposed further that one Mr. Narayan  Murthi  was  the  scribe.
This witness proved that the Will was signed by Smt. Nagammanni and that  he
had signed the document too in her presence.   On  a  consideration  of  the
totality of the circumstances emerging from the narration of  the  attesting
witness, this Court held that the omission on the part of  this  witness  to
specifically state about the signature of the other witness on the  Will  in
presence of the testatrix did amount to his failure to  recollect  the  said
fact and thus the deficiency could permissibly be replenished by the aid  of
Section 71 of the Act 1872.  In no uncertain  terms,  this  Court  did  hold
that the issue of validity of the Will was to be considered  in  context  of
the attendant singular facts.

44.  The legal  propositions  adumbrated  by  the  judicial  pronouncements,
adverted to hereinabove, do not admit of any exception. However,  these  are
of no avail to the appellant herein in  the  conspectus  of  present  facts.
The evidence of the witness AW 1, AW 3 and AW  5  does  not  exhibit  either
denial of the execution of the Will or their failure to recollect  the  said
phenomenon and thus, does not attract the applicability  of  Section  71  of
the Act 1872.

45.  A Will as an instrument of testamentary disposition of  property  being
a legally acknowledged mode of bequeathing a testator’s acquisitions  during
his lifetime, to be acted upon only on his/her demise, it is no  longer  res
integra, that it carries with it an overwhelming element  of  sanctity.   As
understandably, the testator/testatrix, as the case may be, at the  time  of
testing the document for its validity, would  not  be  available,  stringent
requisites for the proof thereof have been statutorily enjoined to rule  out
the possibility of any manipulation.  This is more so, as many a times,  the
manner of dispensation is in stark departure from the prescribed  canons  of
devolution of property  to  the  heirs  and  legal  representatives  of  the
deceased.  The rigour of Section 63 (c) of the Act and Section  68  of  1872
Act is thus befitting the underlying exigency to  secure  against  any  self
serving intervention contrary to the last wishes of the executor.

45.1  Viewed in premise, Section 71 of the 1872 Act has  to  be  necessarily
accorded a strict interpretation.   The  two  contingencies  permitting  the
play  of  this  provision,  namely,  denial  or  failure  to  recollect  the
execution by the attesting witness produced,  thus  a  fortiori  has  to  be
extended a meaning to ensure that the limited liberty granted by Section  71
of 1872 Act does not in any manner efface  or  emasculate  the  essence  and
efficacy of Section 63  of  the  Act  and  Section  68  of  1872  Act.   The
distinction between failure on the part of a attesting witness to prove  the
execution and attestation of a Will and his or her denial of the said  event
or failure to recollect the same, has  to  be  essentially  maintained.  Any
unwarranted indulgence, permitting extra liberal flexibility  to  these  two
stipulations, would render the predication of Section  63  of  the  Act  and
Section 68 of the 1872 Act, otiose.  The propounder can be initiated to  the
benefit  of  Section  71  of  the   1872   Act   only   if   the   attesting
witness/witnesses, who is/are alive and is/are produced and in  clear  terms
either denies /deny the execution of the document or  cannot  recollect  the
said incident.  Not only, this witness/witnesses  has/have  to  be  credible
and impartial, the evidence adduced ought to demonstrate  unhesitant  denial
of the execution of the document or authenticate real forgetfulness of  such
fact.  If the testimony evinces  a  casual  account  of  the  execution  and
attestation of the document disregardful of  truth,  and  thereby  fails  to
prove these two essentials as per law, the propounder  cannot  be  permitted
to adduce other evidence under cover of Section 71 of the 1872 Act.  Such  a
sanction would not only be incompatible with the scheme  of  Section  63  of
the Act read with Section 68 of the 1872 Act but also  would  be  extinctive
of  the  paramountcy  and  sacrosanctity   thereof,   a   consequence,   not
legislatively intended. If the evidence of the  witnesses  produced  by  the
propounder is inherently worthless and lacking in  credibility,  Section  71
of Act 1872 cannot be invoked to bail him (propounder) out of the  situation
to facilitate a roving pursuit. In absence of any touch of truthfulness  and
genuineness in  the  overall  approach,  this  provision,  which  is  not  a
substitute of Section 63 (c ) of the Act and Section 68  of  the  1872  Act,
cannot be invoked to supplement such failed speculative endeavour

45.2  Section 71 of the 1872 Act, even if assumed to be akin  to  a  proviso
to the mandate contained in Section 63 of the Act  and  Section  68  of  the
1872 Act, it has to be assuredly construed harmoniously  therewith  and  not
divorced therefrom with a mutilative bearing.  This underlying principle  is
inter alia embedded in the decision of  this  Court  in  the  Commission  of
Income Tax, Madras Appellant Versus Ajax  Products  Limited  Respondent  AIR
1965, Supreme Court 1358.

      46.  The materials on  record,  as  a  whole,  also  do  not,  in  our
comprehension, present a backdrop, in which, in  normal  circumstances,  the
testator would have preferred  the  appellant  to  be  the  legatee  of  his
property as set out in the Will, Ex. A-1, by denying his wife, children  and
grand children who were alive and  with  whom  he  did  share  a  very  warm
affectionate and cordial relationship.  Viewed in this context, the  bequest
is  exfacie  unnatural,  unfair  and  improbable  thus  reflecting  on   the
testator’s cognizant, free, objective and discerning state of  mind  at  the
time of the alleged dispensation. The suspicious circumstances attendant  on
the  disposition,  in  our  opinion,  do  militatively   impact   upon   the
inalienable imperatives of solemnity and authenticity of any bequest  to  be
effected by a testamentary instrument.

47.  In the wake of the determinations made herein  above,  we  are  of  the
unhesitant opinion that the challenge laid in the instant  appeal  lacks  in
merit.

48.  The High Court, in our estimate, has appropriately appreciated the  law
and the facts in the right perspective and the impugned  decision  does  not
call for any interference.  The appeals are dismissed.

49.   No cost.


                                                                ……………………..J. 
                                                             (Kurian Joseph)


                                                                 ……………………..J.
                                                               (Amitava Roy)
New Delhi
Dated: May 01, 2015