Second Appeal No.529 of 1990

19th April, 2004

Petitioner Counsel: Mr. D. S. SAWANT
Respondent Counsel: Mr. M. H. SOLKAR

Cases Cited:
Madhukar D. Shende Vs. Tarabai Aba Shedage, 2002(1) ALL MR 921 (S.C.)=(2002)2 SCC 85 [Para 7,9]

JUDGMENT

JUDGMENT :- The Appellant and the Respondent are siblings; the Appellant is the sister of the Respondent. The Respondent instituted a suit for partition against his father in 1984 in the Court of the Civil Judge, Junior Division, Alibag. The father of the Appellant and the Respondent died during the pendency of the suit. Thereupon, the Appellant was brought on the record as one of the legal heirs of the deceased defendant. The suit was decreed by the Trial Court on 30th September, 1987. The Trial Court issued a declaration that the Respondent was entitled to a 3/4th share in respect of the properties which form the subject matter of the suit, whereas the Appellant would be entitled to a 1/4th share in respect of the suit property. Since the Respondent had constructed a house bearing Survey No.34/1 of Chinchavali village, the Trial Court directed that the aforesaid portion should be allotted to the share of the Respondent. The Appellant filed an appeal before the Additional District Judge, Raigad which was dismissed by the impugned judgment and order dated 9th July, 1990.

2. Both the Courts below have held that the properties which form the subject matter of the suit for partition were the joint family properties of the Respondent and his deceased father Rama. On the aforesaid finding, the Trial Court held that the Respondent was entitled to a 3/4th share in the suit properties (comprising of his own 1/2 share and 1/2 out of the remaining 1/2 share of the deceased father). The Appellant was held entitled to a 1/4th share. The Appellant on her part had set up a case that she was entitled to a share of 1/2 in respect of the suit properties on the basis of a registered Will alleged to have been executed by her deceased father on 9th December, 1981. The Courts below have come to the conclusion that the Will has not been duly proved.

3. The substantial question of law that arises in this Second Appeal is in the circumstances formulated thus :

"Has the Appellant duly proved the alleged Will dated 9th December, 1981 said to have been executed by her deceased father Rama Dhaya Patil, so as to claim an entitlement of 1/2 share in the properties which form the subject matter of the suit for partition?"

4. The Will in question is alleged to have been executed by the father of the Appellant and the Respondent on 9th December, 1981. The Will has been registered on the same day by the Sub-Registrar, Alibag. The Will was exhibited in evidence and marked as Exh.82. The admitted position is that the Appellant is the daughter born out of a second marriage that was entered into by the testator upon the death of his first wife. The Respondent is a son born from the first marriage. The Will purports to have been attested by two witnesses : (i) one Mr. S. D. Joshi and (ii) one Suhas Sabnis. Besides the Appellant who deposed in support of the Will, one of the two attesting witnesses Mr. S. D. Joshi stepped into the witness box and deposed in support of the case of the Appellant. The Appellant in the course of her examination-in-chief stated that the Respondent was her step brother and that while she was residing in a half portion of the house situated at Ranjankhar, the Respondent resided in the remaining half. She stated that she was so residing since the time of her marriage. The Respondent, it was stated, was thereafter residing in a house at Narangee which he had constructed on agricultural land. The Appellant claimed that upon the death of her father, she had cultivated the lands. The Appellant stated that the father had executed a Will on 9th December, 1981 and bequeathed the property to her. According to the Appellant she was present when the Will was executed and that her father was in a sound condition of health on the date of execution. The Will, she stated, bore the thumb impression of her father which she identified. In support of the due execution of the Will, the second witness who deposed on behalf of the Appellant was one of the two attesting witnesses, Sanjay Dwarkanath Joshi. The testimony of the attesting witness would have to be considered in greater detail in the light of the findings which have been arrived at by the Appellate Court. The evidence of the attesting witness, it must be noted, shows (i) that he was a clerk in the office of an advocate and that the scribe of the Will was his brother who was a petition writer in the Court; (ii) that after the Will had been scribed, he had been requested by his brother to act as an attesting witness; (iii) that he had seen the deceased testator put his thumb impression on the Will and that the thumb impression of the testator had been taken in his presence and (iv) that he had signed the Will as an attesting witness in the presence of the testator.

5. On the basis of the aforesaid evidence, the Appellate Court has come to the conclusion that the Will has not been proved. Four reasons can be culled out from the judgment of the Additional District Judge as the basis for the aforesaid conclusion :

(i) Whereas the Appellant has stated that the Will had been reduced into writing in the office of the Sub-Registrar, Alibag, the attesting witness has stated that the Will had been reduced into writing in the Court at Alibag;

(ii) The attesting witness had admitted that the Will had been reduced into writing in his absence and it was only after the Will had been scribed that he was asked to come forth and endorse his signature as an attesting witness;

(iii) That "It is quite obvious from the admission of the attesting witness Sanjay Joshi that in his absence the testator Rama Dhaya Patil signed the Will at Exh.82;" and

(iv) The attesting witness had admitted that the other attesting witness has not signed the Will in his presence.

6. Each of these four reasons which have been adduced by the Additional District Judge will have now to be considered in the background of the requirement which the law specifies for the proving of a Will. Section 63 of the Indian Succession Act specifies the requirements for the due execution of a Will. The first requirement is that the testator must sign or affix his mark to the Will or that it must be signed by some other person in his presence by his direction. The second requirement is that the signature or mark of the testator, or of the person signing for him, must be so placed that it shall appear that it was intended thereby to give effect thereto as a Will. The entire dispute, however, in the present case turns upon the third requirement which is spelt out in clause (c) of Section 63 which reads thus :

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

What Clause (c) of Section 63 requires is (i) that the Will must be attested by two or more witnesses; (ii) each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or must receive from the testator a personal acknowledgment of his signature or mark and (iii) that each of the witnesses must sign the Will in the presence of the testator. However, it is not necessary that more than one witness should be present at the same time. Regard must also be had to the provisions of Section 68 of the Indian Evidence Act, 1872 which prescribes that 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.

7. In the present case, in compliance with the requirement of Section 68 of the Evidence Act, one of the two attesting witnesses stepped into the witness box in support of the due execution of the Will. The attesting witness specifically stated that the testator placed his thumb impression on the Will before him and it is abundantly clear from the testimony of that witness that the Will was duly attested after the testator had signed it. There are two important circumstances which weigh in favour of the acceptance by the Court of the testimony adduced in respect of the due execution of the Will. The first circumstance is that the Will by its tenor and contents appears to be natural and in the ordinary course of events. The Appellant is the daughter of the deceased. The testator has recorded in the Will, Exh.82, that after the death of his wife it was the daughter who had looked after him and provided support to him. It was in these circumstances, that the testator stated that he had bequeathed his property to his married daughter, the Appellant herein. The Appellant is not a stranger to the testator but his own daughter. The second important circumstance is that the Will in the present case is a duly registered document having been registered by the Sub-Registrar at Alibag on 9th December, 1981. An endorsement to that effect is found at the foot of the Will. If regard be had to the four circumstances which have weighed with the Appellate Court, this Court is constrained to observe that each one of them is either irrelevant or, as in the case of the third circumstance patently incorrect in that it refers to an admission which has not been made by the attesting witness. The first circumstance adverted to in the judgment of the appellate Court for discrediting the Will is that whereas the Appellant stated in the course of her deposition that the Will had been reduced into writing in the office of the Sub-Registrar at Alibag, the attesting witness stated that the Will had been reduced into writing in the Court at Alibag. That in my view is not a contradiction of a serious nature and certainly that itself would not discredit the Will in the presence of other circumstances which overwhelmingly point to the due execution of the Will by the testator. In a case such as the present, the Court must be guided by the law which has been laid down by the Supreme Court in Madhukar D. Shende Vs. Tarabai Aba Shedage ((2002)2 SCC 85 : 2002(1) ALL MR 921 (S.C.)). Mr. Justice R. C. Lahoti speaking for a Bench of two Learned Judges held that the requirement of proof of a Will is the same as any other document, save and except that the evidence tendered in proof of a Will should additionally satisfy the requirements of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, 1872. If after considering the matter before it, and the material on record, the Court either believes that the Will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of a particular case, to act upon the supposition that the Will was duly executed by the testator, then the factum of the execution of Will shall be said to have been proved. The Supreme Court then cautioned against allowing suspicions and suppositions to enter upon the judicial conscience where the Will is otherwise satisfactorily proved :

"The conscience of the court has to be satisfied by the propounder of Will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a Will provided that there is something unnatural or suspicious about the Will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal convincing evidence. Well-founded suspicion may be ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict - positive or negative."

8. The second reason which has weighed with the Additional District Judge is that the Will had been reduced into writing before the attesting witness entered into the picture. Again this furnishes no ground in law for holding that the Will has not been duly proved. The requirement of Section 63(c) is not that the attesting witness should be present when the Will is actually being scribed or is being reduced into writing but that the attesting witness must witness the signature on the Will by the testator or receive an acknowledgement from the testator of his having signed the Will and that the attesting witness must sign in the presence of the testator. The second reason which weighed with the Additional District Judge is clearly extraneous to the requirement of Section 63(c). Section 63(c) does not postulate any requirement to the effect that the attesting witness ought to be present when the Will is scribed. Undoubtedly the presence or absence of the attesting witness when the Will is being scribed may in a given case furnish one circumstance in considering whether the conscience of the Court has been duly satisfied in regard to the due execution of the Will. What the Court has to do is to consider whether the Will was duly executed or to consider whether there is the probable existence of such facts that any prudent person in the circumstance of a particular case ought to act on the supposition that the Will was duly executed. That is the approach which has been laid down by the Supreme Court. Apart from the aforesaid two reasons, which to my mind have erroneously been taken into account by the Additional District Judge, it is the third reason which is the most important. The third reason which has been advanced by the Appellate Court is that there is an admission of the attesting witness that the testator had signed the Will in his absence. With the assistance of both the learned counsel, I have perused the entire testimony of the attesting witness. There is absolutely no admission to the effect that the testator had signed the Will in the absence of the attesting witness. On the contrary, the witness has clearly stated that the thumb impression of the testator was placed on the Will in his presence after which he had signed as an attesting witness. What the attesting witness had admitted is that the Will was scribed before he came into the picture, but that is not an admission as the Additional District Judge had erroneously assumed that the Will had already been signed before the attesting witness came on the scene. There is no such admission in the entire testimony of the attesting witness. The fourth reason which weighed with the Additional District Judge is that the other attesting witness had not signed the Will in the presence of the attesting witness who deposed in support of the case of the Appellant. Even in so far as this reason is concerned, Section 63(c) clearly spells out that it shall not be necessary that more than one witness be present at the same time. This part of the provision was evidently ignored by the Appellate Court.

9. Above all, as was laid down by the Supreme Court in Shende's case (supra) factors such as the Will being a natural one or being registered or executed, in such circumstances and ambience, as would leave no room for suspicion, assume significance. The Supreme Court has cautioned that if there is nothing unnatural about the transaction and the evidence adduced satisfied the requirement of proving a Will, the court would not return a finding of "not proved" merely on account of certain assumed suspicions or suppositions.

10. In conclusion therefore, this is a case where the requirements which have been laid down by the law for holding that the Will stands duly proved have been established. The Will is by a father in favour of his daughter and the effect of the Will is that 1/2 of the share of the father in the tenanted agricultural lands which have been held to be joint family property would stand bequeathed to his daughter - the Appellant. The Respondent who is the brother of the Appellant has not been divested completely of his share in the agricultural lands. The only question is as to whether the Respondent would be entitled to a 3/4th share as was held by the Trial Court or a 1/2 share as the Appellant contends on the basis of the Will executed by her father. The Will has been registered. There is absolutely no material to disprove the evidence of the Appellant that her father was in a sound state of health when the Will was executed. Apart from these circumstances, learned Counsel appearing on behalf of the Appellant had adverted to the provisions of Section 40(1) of the Bombay Tenancy and Agricultural Lands Act, 1948 which lays down that where a tenant dies, the landlord shall be deemed to have continued the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death, to such heir or heirs of the deceased tenant as may be willing to continue the tenancy. Fairly, however, this line of inquiry has not been pressed further by counsel for the Appellant since it has not been squarely raised before the Appellate Court. The contention of the Respondent that the Will is of no effect because it had not been probated is only to be stated to be rejected since the requirement of probate does not apply to the territory in which the property is situated viz. in the district of Raigad.

11. In the circumstances, the Second Appeal has to be allowed and is accordingly allowed. Clause 2 of the operative directions contained in the judgment and order of the learned Trial Judge dated 30th September, 1987 shall consequently stand modified in that there shall be a declaration to the effect that the Appellant and the Respondent are both entitled to a one half share in the suit property. The learned Trial Judge having found that the Respondent had constructed a house in Survey No.34/1 of Chinchavali village, the said portion, to the extent to which it is possible in the course of execution, be allowed to the share of the Respondent. The Appeal shall stand disposed of in the aforesaid terms.

No order as to costs.

Order accordingly.