2010(4) ALL MR 147
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

P.R. BORKAR, J.

Kakasaheb S/O. Bhaurao Vidhate Vs. State Of Maharashtra & Ors.

First Appeal No.204 of 1996

29th March, 2010

Petitioner Counsel: Shri. M. M. PATIL (Beedkar)
Respondent Counsel: Smt. R. K. LADDA,Shri. S. S. CHAUDHARY

(A) Civil P.C. (1908), S.11 - Res-judicata - Before an issue can be said to be res-judicata, such issue should be framed in former suit between the same parties. 1994(1) Mh.L.J. 295 - Ref. to. (Para 7)

(B) Succession Act (1925), S.63(c) - Will - Attesting witness - Witness signed as witness identifying executant/author of the Will before Sub-Registrar and not as attesting witness - It cannot be said that the Will was properly attested and proved. AIR 1969 SC 1147 - Rel. on. (Paras 14, 16)

Cases Cited:
Shivraj Vs. Prayagbai, 1994(1) Mh.L.J. 295 [Para 8]
Punnakkal Konnu's daughter Ammu Vs. Thekkekara Kunhunni's son Krishna, AIR 1965 Kerala 32 [Para 13]
N. Kamalan (dead) Vs. Ayyasamy, (2001)7 SCC 503 [Para 14]
Girija Datt Vs. Gangotri Datt, AIR 1955 SC 346 [Para 14]
Abinash Chandra Bidvanidhi Bhattacharya Vs. Dasarath Malo, ILR 156 Cal. 598 [Para 14]
Shaiam Sunder Singh Vs. Jagannath Singh, 54 MLJ 43 [Para 14]
Beni Chand Vs. Smt. Kamla Kunwar, AIR 1977 SC 63 [Para 15]
M. L. Abdul Jabbar Sahib Vs. H. Ventakkta Sastri, , AIR 1969 SC 1147 [Para 16,18]
B. Rajegowda Vs. H. R. Shankare-gowda, AIR 2006 Karnataka 48 [Para 17]
Pyare Mohan Vs. Smt. Narayani, AIR 1982 Rajasthan 43 [Para 18]


JUDGMENT

JUDGMENT :- This first appeal is preferred by original Respondent No.3 in Land Acquisition Reference No.639 of 1991 under Section 30 of the Land Acquisition Act, being aggrieved by the decision of the learned Joint Civil Judge, Senior Division, Osmanabad delivered on 23.1.1996 disposing of said Land Acquisition Reference, whereby it is held that the estate of the deceased Shevantabai was inherited by present Respondent Nos.2 and 3 and not by appellant Kakasaheb as the alleged Will in favour of appellant Kakasaheb was not duly proved to have been attested and as such not admissible in evidence.

2. Briefly stated, it is not disputed that deceased Shevantabai was the owner of land bearing survey No.224 situated at Kallam. The land was acquired by the Government and the Land Acquisition Officer awarded an amount of Rs.52051/= as compensation. The said amount is claimed by present Respondent Nos.2 and 3 by inheritance saying that Shevantabai, who was widow, died issueless and Respondents No.2 and 3 being nephews of Shevantabai, were her close relatives and, therefore, entitled to get compensation. As against that, present appellant also approached Land Acquisition Officer and claimed that deceased Shevantabai had executed a Will in his favour and as such, he is legatee and hence entitled to claim compensation. It is also averred by appellant Kakasaheb that previously, Shevantabai had filed suit, being R.C.S. No.107 of 1977, in the Court of Civil Judge, Senior Division, Kallam initially against five Defendants for injunction. However, subsequently, present Respondents Nos.2 and 3 made an application in the said suit for being added as parties to the said suit. Consequently, they were added as Defendant Nos.6 and 7. During pendency of that suit plaintiff Shevantabai died and, therefore, present appellant Kakasaheb made application in that suit for substituting him in place of deceased Shevantabai as her legal representative on the basis of the Will executed on 15.1.1975. Appellant Kakasaheb was, accordingly, substituted in place of deceased Shevantabai in said suit as her legal representative, by holding that he had proved the Will. It is contended on behalf of the appellant that the said finding is binding on present Respondent Nos.2 and 3 and there is bar of res judicata.

3. The Reference Court, to whom the reference was made by the Land Acquisition Officer under Section 30 of the Land Acquisition Act, called upon the present appellant and Respondent Nos.2 and 3 to lead evidence. Reference Court held that the alleged Will dated 15.1.1975 was not properly attested as required by law as the Will was attested by only one witness and as such the Will was invalid and does not confer any right on the present appellant (Respondent No.3 in L.A.R.) The Reference Court held that decision in R.C.S. No.107 of 1977 does not operate as resjudicata. Ultimately, the reference court held that Respondent Nos.1 and 2 in the said L.A.R. (present Respondent Nos. 2 and 3) are entitled to receive compensation of Rs.52,051/= awarded by the Land Acquisition Officer. It is this award and judgment which is challenged in this second appeal by original Respondent No.3 Kakasaheb.

4. After hearing Shri. M. M. Patil (Beedkar) learned Advocate for the appellant, Smt. R. K. Ladda learned A.G.P. for Respondent No.1 State and Shri. S. S. Choudhari, learned Advocate for contesting Respondent Nos.2 and 3, mainly following two issues arise for consideration:

(1) Whether Reference Court was right in holding that the finding in R.C.S. No.107 of 1977 does not operate as res judicata ?

(2) Whether the Will dated 15.1.1975 is duly attested and proved as required by law ?

5. In this case, so far as point of resjudicata is concerned, the Reference Court has held that R.C.S. No.107 of 1977 filed by deceased Shevantabai in the Court of Civil Judge, Junior Division, Kallam against five Defendants was for perpetual injunction simplicitor. Shevantabai expired pending that suit and present appellant Kakasaheb filed application for substituting him in place of Shevantabai as her legal heir on the basis of the said Will. At the same time, present Respondent Nos.2 and 3, who were not parties to the said suit, made an application for adding them as third parties and the court allowed them to participate in the suit as defendant Nos.6 and 7. Accordingly, they were also allowed to be added as Defendant Nos.6 and 7 in the said suit and participate in the said proceedings.

6. In the said suit, present appellant filed Will Deed at Exh.109 (in LAR No.639/91 it is exhibited at 45).However,when application (Exhibit 83) was filed by present Respondent Nos.2 and 3 in the said suit for framing issues as to who were the legal representatives of deceased Shevantabai and whether they are entitled to get compensation, the learned Civil Judge, Junior Division, Kallam, on hearing both sides, rejected the said application. Therefore, no issue was framed in R.C.S.No.107 of 1971 as to who was the legal representative of deceased Shevantabai. The Reference Court observed that in absence of any issue being framed on the said aspect, present Respondent Nos.2 and 3 were not called upon to lead evidence. Even in the judgment in R.C.S. No.107 of 1977 as a part of discussion in para.13 on issues No.6 and 7 regarding whether the plaintiff is entitled to injunction and recovery of possession of the portion shown in the plaint map, it is observed that about the Will deed at Exhibit 109 (Exh.45 in LAR No.639/1991), defendant Nos.6 and 7 (present Respondent Nos.2 and 3) had not contended anything regarding the said Will and had only contended that the present appellant Kakasaheb had got executed many false documents from Shevantabai and the Will Deed was a suspicious Will. The Court also took into consideration evidence of PW-2 Dattatraya Gangaram Kamble who was attesting witness to the Will and ultimately it is held that the present appellant Kakasaheb proved the said Will.

7. Section 11 of the Code of Civil Procedure, 1908 is very clear. It lays down that before an issue can be said to be res judicata, such issue should be framed in former suit between the same parties. In the present case, record and particularly the judgment in R.C.S.No.107 OF 1977 clearly shows that no issue regarding Will was framed. As stated earlier, the Court had rejected the application Exh.83 filed by present Respondent Nos.2 and 3 for framing such issue regarding who succeed the estate of Shevantabai.

8. Shri. S. S. Choudhari, learned Advocate for Respondent Nos.2 and 3 relied upon the judgment in the case of Shivraj Vs. Prayagbai, 1994(1) Mh.L.J. 295 for proposition that for bar of res judicata, it is necessary to frame issue though finding as to who was the legal representative under Order 22, Rule 5 of C.P.C. may be binding for the purpose of particular litigation. In paragraph 6, it has been observed that determination of legal representative of deceased party under Order 22, Rule 5 of CPC is not a judgment about the heirship or right to the property and is merely for the purpose of continuation of the suit. It is also observed that the courts are free to pass proper orders as exigency in particular suit would require. It is further observed in paragraph 8 that of the two claimants, the Court may select one of them who in his opinion and after summary enquiry, has better right to be legal representative of the deceased plaintiff and direct the other claimant to be added as defendant and leave the final adjudication of the rival claims for the hearing and the disposal of the suit. This procedure may not be necessary when one of the rival claims can be discarded as totally baseless or unfounded or the entitlement of either of them is so obvious which can be determined in summary inquiry.

9. Since no issue regarding validity or legality of the alleged Will was framed, the same cannot be said to have been properly considered in R.C.S. No.107 of 1977, particularly when, as observed in para 13 of judgment in that suit, the court only was prima facie considering the pleadings. Be that as it may. In my considered opinion, there is no bar of res judicata to the issue of validity of the Will.

10. In this case, one of the major fault in the Will, which is proved at Exhibit 45 is that when the Will was written, names of two witnesses were mentioned as witnesses to the Will One is S. N. Chandanshiv, Sarpanch, Gram Panchayat. He signed on the Will against his name. Below his signature, there is name of another witness "Dattatraya Gangaram Kamble, Deputy Sarpancha r/o. Agalgaon". But the place for signature against his name is blank. Below said names of witnesses and blank space, there is stamped endorsements of the Sub-Registrar regarding Shevantabai admitting the Will before him, so also of her identification in his presence. Below the said endorsement of identification of Shevantabai, there is signature of Dattatraya Gangaram Kamble, Deputy Sarpanch and below that there is signature of the Sub-Registrar. It is, therefore, argued by Ld. Advocate of Respondents and it is held by the trial court that the signature of witness Dattatraya was as a person identifying the executant of the Will before the Sub-Registrar and it is not signature made as an attesting witness of the document and as such, there is attestation of document by only one witness and not by two or more witnesses as required by law.

Therefore, the requirements of Section 63 (c) of the Indian Succession Act, 1925 are not complied with.

11. Section 63(c) of the Indian Succession Act lays down that 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 acknowledgment of his signature or mark, or of 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.

12. Relying upon Section 63, it is argued that even though the signature of Dattatraya Kamble was below the endorsement by the Sub-Registrar regarding identification of Shevantabai by another person in presence of the Sub-Registrar, that signature of Dattatraya Kamble would be considered as attestation. My attention was drawn to the evidence of said witness Dattatraya Kamble examined as Claimant's witness No.2 at Exh.44. He deposed that Shevantabai told him that she wanted to execute a Will in favour of Kakasaheb (present appellant) who was residing with her and taking her care in her last days. Thereafter Shevantabai, present appellant, one Chandanshiv and this witness Dattatraya went to Barshi in the office of the Sub-Registrar. There, Shevantabai told one Vasudeo Suman, the bond writer, to write the contents of the Will. Accordingly, Vasudeo Suman wrote the same. Thereafter, Shevantabai put her thumb impression on the Will and then Vasudeo Suman put his dastoor and then told the witnesses to sign. Accordingly, Chandanshiv and Dattatraya signed the Will. He proved the Will Exhibit 45. It is further stated that thereafter the document was placed for registration before the Sub-Registrar, who asked whether the contents of the document were correct. He also asked the witnesses whether the document bore their signatures. Then they signed the document in presence of the Sub-Registrar. Witness Dattatraya deposed that on the last page of the Will, there are signatures marked as "A" and "B" made before the Sub- Registrar. However, it may be noted that as against portion "A" there is no signature and the said portion is blank and there is signature below the stamp of the Sub-Registrar regarding identification of executant of the Will i.e. Shevantabai. So, the witness falsely stated that the signature at portion "A", which is, in fact, a blank space, was his signature. Witness Dattatraya was, therefore, rightly not believed by the Reference Court. In paragraph 4 of cross examination of witness Dattatraya, it is brought on record that as against portion marked "A", there is a blank space and against it there is only name "Dattatraya Gangaram Kamble" and that his signature is not on the said blank space, but the same is below the endorsement of the Sub-Registrar.

13. Learned Counsel Shri. M.M.Patil for the appellant relied upon the case of Punnakkal Konnu's daughter Ammu Vs. Thekkekara Kunhunni's son Krishnan AIR 1965 Kerala 32, which is ruling of Single Bench of Kerala High Court. It is held that in case the document is a will which does not require registration, the Sub-Registrar and the identifying witness, if they conform to the law regarding attestation, may become attesting witnesses. It is further held that the Sub-Registrar in that case was an attesting witness, since he had been called as a witness and had also proved the execution. The will was properly attested and properly proved. However, that ruling is contrary to the law as laid down by the Supreme Court.

14. In the case N. Kamalan (dead) Vs. Ayyasamy, (2001)7 SCC 503, in paragraph 1, it is laid down that "onus probandi" and "animo attestandi" are the two basic features in the matter of civil court's exercise of testamentary jurisdiction; whereas "onus probandi" lies in every case upon the party propounding a Will the expression "animo attestandi" means and implies animus to attest; to put it differently and in common parlance it means intent to attest. The case of Girija Datt Vs. Gangotri Datt, AIR 1955 SC 346 is referred to by the Supreme Court wherein it has been held that two persons who had identified testator at the time of registration of the Will and had appended their signatures at the foot of the endorsement by the Sub-Registrar, were not attesting witnesses as their signatures were not put "animo attestandi". The observations of Calcutta High Court in Abinash Chandra Bidvanidhi Bhattacharya Vs. Dasarath Malo, ILR 56 Cal.598, were also relied upon which are to the effect that a person who had put his name under the word "Scribe" was not an attesting witness as she had put signature only for the purpose of authenticating that she was a scribe. In the similar vein, the Privy Council in Shaiam Sunder Singh Vs. Jagannath Singh, 54 M.L.J. 43 held that the legatees who had put their signatures on the Will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees.

In present case on perusal of the Will at Exh.45, it is clear that witness Dattatraya Kamble has not signed the Will as attesting witness, but has signed the same as witness identifying executant/author of the Will before the Sub-Registrar.

15. Another case cited is Beni Chand Vs. Smt. Kamla Kunwar, AIR 1977 SC 63. In paragraph 8, it is observed that it is not labelling of the witness as an attesting witness is not necessary.

16. In the case of M. L. Abdul Jabbar Sahib Vs. H. Venkata Sastri, AIR 1969 SC 1147, more particularly in paragraphs 8,10 and 11, entire law is discussed and it is observed that prima facie, registering officer puts his signature on the document in discharge of his statutory duty under Section 59 of Registration Act and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature. Same is the case with Kaki Abdul who was identifying witness. In the present case also, on the face of record, Dattatraya Kamble was the identifying witness and not to the execution of the Will.

17. In B. Rajegowda Vs. H. R. Shankaregowda, AIR 2006 Karnataka 48, it is observed that witness must have put his signature animo attestandi i.e. for the purpose of attesting that he has seen executant sign or receive from him personal acknowledgment of his signature.

18. Another case on the same point is of Pyare Mohan Vs. Smt. Narayani, AIR 1982 Rajasthan 43. In para 10, it is observed that it is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sibn or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g. to certify that he is a scribe or an identifier or registering officer, he is not an attesting witness. In the said case, decision in M. L. Abdul Jabbar Sahib Vs. H. Ventakta Sastri, AIR 1969 SC 1147 was referred to.

19. Having regard to the facts and circumstances and the above legal position, this first appeal must fail. According the first appeal stands dismissed. Parties to bear their own costs.

Appeal allowed.