SECOND APPEAL NO. 543 OF 2004

5th March 2019

Petitioner Counsel: Shri C. J. Dhumane
Respondent Counsel: Shri M. P. Kariya
Act Name: Indian Succession Act, 1925 Indian Evidence Act, 1872

Section :
Section 63 (c) Indian Succession Act, 1925 Section 68 Indian Evidence Act, 1872

Cases Cited :
Para 12: Ramesh Babulal Doshi Vs. State of Gujarat, (1996) 9 SCC 225
Para 12: Deokali (Smt) Vs. Nand Kishore and others, (1996) 9 SCC 232
Para 13: Raghupati Janardhan Kathale and others Vs. Pundlik Balaji Upadhye and others, 2002 (5) Mh.L.J.102
Para 13: Kakasaheb Bhaurao Vidhate Vs. State of Maharashtra and others, 2010 (5) Mh.L.J. 533
Para 13: Balathandayutham and another Vs. Ezhilarasan, 2010 (5) Mh.L.J. 180
Para 13: Dr. Prakash Soni Vs. Deepak Kumar and another, 2018 (2) Mh.L.J. 583
Para 13: Benga Behera Vs. Braja Kishore Nanda, 2007 (9) SCC 728
Paras 13, 15: Shirin Baman Faramarzi Vs. Zubin Boman Faramarzi and another, 2017 (6) Mh.L.J. 115

JUDGEMENT

1. This appeal has been preferred against the judgment and decree passed by the 3rd Ad-hoc Additional District Judge, Yavatmal delivered on 5.8.2004 arising out of the judgment and decree passed by the Civil Judge, Junior Division, Babhulgaon in Regular Civil Suit No.26/1999 passed on 12.4.2002. Parties are referred by their original status.

2. Brief facts of the case which are necessary to decide the appeal are as under :
The plaintiffs had filed the suit for setting aside the order passed by the Tahsildar and seek the possession of the field bearing Gat No.112, admeasuring 1 H. 29 R. and Gat No.113, admeasuring 0.89 R situated at village Kopra Jankar, TahsilBabhulgaon, District-Yavatmal. The said suit was dismissed by the learned Civil Judge, Junior Division, Babhulgaon. Against the said judgment and decree, the original plaintiffs preferred the appeal before the learned Additional District Judge, Yavatmal. The learned Additional District Judge, Yavatmal has allowed the appeal. Against the said judgment and order, the appellant-original defendant preferred the present second appeal.

3. Ambadas Damodar Bhalerao was the Priest in the temple at village Kopra Jankar. He was Bachelor. His brother Bhanudas was residing at Yavatmal. They had partitioned their fields. The wife of Bhanudas is Mandakini (P-1) and daughter of Bhanudas is Prabhavati (P-2). Ambadas died at Kopra Jankar in the year 1993. The original plaintiffs Mandakini and Prabhavati also claimed to be the legal heirs and successors of the property of Ambadas. According to them, they were in joint possession and cultivation of the suit fields. However, it was revealed that Ambadas bequeathed the property in the name of Kasabai, who was a widow and was residing with him. Kasabai died on 19.8.1995. Original defendant Dilip (Appellant herein) claimed to be the grandson of Kasabai. It is the case of the plaintiffs that Kasabai moved before the Tahsildar for mutation of her name in the record of right on the basis of the will. However, the Tahsildar observed that the will was a sham will deed and the defendant Dilip was shown to be the successor of the suit property by will deed executed by Kasabai on 4.8.1995. The plaintiffs were dispossessed from the suit field in the year 2001.

4. The defendant has resisted the claim of the plaintiffs by filing his written statement. It was categorically urged by the defendant that deceased Kasabai was looking after Ambadas, therefore, Ambadas has bequeathed the suit fields by registered will deed to her. Bhanudas sold his field to Ambadas. In view thereof, Ambadas become the sole owner of the suit property. The defendant, being the grandson of Kasabai, lived with her. Kasabai bequeathed the suit property to him. According to the defendant, the Tahsildar has rightly passed the order. Hence, they prayed for dismissal of the suit.

5. The trial Court, on considering the evidence led by the parties before him relied upon the will deed executed by Ambadas in favour of Kasabai and held that Kasabai executed the will in favour of the defendant and on considering both the will deeds, it held that the defendant became the sole owner of the suit property.

6. The plaintiffs preferred the appeal against the said judgment and order passed by the Civil Judge, Junior Division, Babhulgaon before the learned Additional District Judge, Yavatmal and the learned Additional District Judge, Yavatmal, on hearing both the sides, observed that the will executed by Kasabai was executed under suspicious circumstances and therefore held that it is not a genuine will. It was observed that the relationship between Kasabai and the defendant is not material and after relying upon the will, the property was reverted back to the original family of Ambadas i.e. his relatives, who are original plaintiffs. It was observed that the Tahsildar, vide order Exh.70, has inserted the name of the defendant as legal representative of deceased Kasabai on the basis of the will and the findings and reasons put-forth by the Naib Tahsildar exceeded his jurisdiction. In these circumstances, the appellate Court allowed the appeal preferred by the original plaintiffs and it was ordered that the defendant should deliver the vacant possession of the suit land to the plaintiffs within three months.

7. This Court, while admitting the Second Appeal, framed the following substantial question of law :
“Whether the appellate Court was justified in decreeing the suit of the respondent when there was no question of his deriving the title to the suit property once the Will executed by Ambadas in favour of Kasabai was duly proved.?

8. Learned advocate for appellant Shri Dhumane fairly submitted that both the sides did not dispute the first will which was executed by Ambadas in favour of Kasabai. He submitted that only the dispute is about the second will executed by Kasabai in favour of defendant Dilip, who is her grandson. It is submitted that as Dilip was residing with Kasabai being her grandson, she has 15 days prior to her death, bequeathed the property in his favour. It was further submitted that only because the will was registered after the death of Kasabai, the will cannot be doubted. He further submitted that the appellate Court has erred in observing that it is not clarified that why the will was registered on 20.10.1995 i.e. after the death of Kasabai, so also the appellate Court erred in observing that the concluding paras up to page 7 in the will are adjusted in such a fashion so as to make it conveniently adjusted with the thumb impression. It was unnecessarily observed that the mental state of health of Kasabai while executing the will in favour of defendant was not good. It was not clear whether she was mentally and physically fit to make her statement before the witnesses or expressed her desire to make a will in favour of defendant Dilip. According to learned advocate there was nothing to doubt the will executed by Kasabai.

9. Per contra, it was contended by Shri Kariya, the learned advocate for the respondent no.2-original plaintiff, that there was absolutely no relationship between Kasabai and Ambadas, so that Ambadas would execute a will in her favour in respect of his entire property. It was further submitted that the Tahsildar has wrongly deleted the names of the plaintiffs and has inserted the name of defendant Dilip on the basis of the will executed by Kasabai. Shri Kariya contended that the will was executed in suspicious circumstances on various grounds discussed in the judgment delivered by the appellate Court in paras 13 and 14, so also Advocate Shri Kariya placed reliance on various judgments of the Hon'ble Apex Court as well as this Court pointing out that if the will is executed in suspicious circumstances it should not be relied upon and the person propounding the will has a very heavy burden to discharge.

10. Admittedly, the first will was executed by Ambadas in favour of Kasabai, by which the entire property of Ambadas was bequeathed in favour of Kasabai including the share in the property which was sold by Bhanudas who was brother of Ambadas to Ambadas. The question, however, remains whether the alleged will deed which was executed by Kasabai in favour of her grandson is a genuine will deed or not. On a perusal of record, particularly the evidence of Dilip, it reveals that Dilip was not in a position to state in his cross-examination as to how many were the maternal aunts of his mother, although he claims that Kasabai was maternal aunt of his mother. So also he failed to state the name as well as surname of his grandmother. He also failed to state the surname of his maternal uncle and the name of his grandfather. In these circumstances, the statement of Dilip that he is a grandson of Kasabai cannot be relied upon. Admittedly, Kasabai was from harkat community and Ambadas was from Bramhin community. It is not clear from the entire record as to what was the exact relationship between Ambadas and Kasabai, whether Ambadas treated her as his daughter or sister or there was any sort of other relationship, is not clear from the evidence. In these circumstances, it is not clear as to how Ambadas bequeathed the property in favour of Kasabai. The evidence of PW-1 Mandakini (P-1) clearly shows that Ambadas was her brother-in-law. He was unmarried and she was his legal heir. It further revealed that in 7/12 extract Exh. 5 to 7, her name was shown as owner as well as cultivator. The said version of PW-1 Mandakini was not challenged in the crossexamination which makes amply clear that petitioner no.1 is the legal heir of Ambadas.

11. Now coming to the will allegedly executed by Kasabai in the favour of Dilip, the will appears to have been executed on 4.8.1995 and is registered on 20.10.1995. The question would certainly arise as to why the will was not registered prior to the death of Kasabai which had taken place just 15 days after the execution of the will, when the will was with the parties. On a perusal of the will, it appears that the contents in the will till concluding paras at page 7 are adjusted in such a fashion so as to make it conveniently adjusted with the thumb impression. The contents in the will are scribed in a black ink, whereas the thumb impression is found to be in a blue ink. It is not clear as to whether the thumb impression was sought from a blue ink-pad or by the same ink which was in the pen used by the scriber of the will. None of the witnesses speak whether Kasabai was physically as well as mentally fit to make a statement running into seven pages before the witnesses. Similarly, the language used in the will does not appear to be of an illiterate person particularly residing in the village. It is nobody's case that Kasabai was an educated lady. The thumb impression itself indicates that she was an illiterate lady, therefore, she being a rustic lady, would not have used a legal language while dictating the will. The will depicts the entire history of the property of Ambadas. It is not clear as to how the lady was having a knowledge of the property of Ambadas in details. Kasabai was an old lady aged about 70 years old when she dictated the will she must have visualised her death in near future and therefore she died just 15 days after the execution of said will. In these circumstances, dictating a will running into seven pages not bearing signature on each and every page appear to be suspicious circumstances. So also all aforesaid circumstances are suspicious circumstances which leads to the conclusion that the will is not a genuine will of Kasabai, in the light of the fact that no relationship between Kasabai and Ambadas has been established, whereas it is not disputed that petitioner no.1 is the wife of Bhanudas, who was real brother of Ambadas, now she is no more. Prabhavatibai is the daughter of Bhanudas and Mandakinibai. She is the sole legal heir of Ambadas.

12. Learned counsel for appellant Shri Dhumane placed reliance on the following cases :
1] Ramesh Babulal Doshi .vs. State of Gujarat, (1996) 9 SCC 225.
2] Deokali (Smt) .vs. Nand Kishore and others, (1996) 9 SCC 232, in para 6 it is held that :
6. In the second appeal before the High Court, it was contended that there were at least six suspicious circumstances because of which the genuineness of the alleged Will should have been disbelieved. The six suspicious circumstances were :
[1] The Will was written in two pages. The first page did not bear any signature of Shivnarayan nor of any one of the witnesses.
[2] The first page of the Will was written on a stamped paper but the second page was written on a plain paper.
[3] The writer of the Will did not come forward to give evidence.
[4] The Will alleged to have been executed by Shivnarayan on 2.5.1972 was produced for the first time in 1975.
[5] The Will was allegedly proved on evidence of witnesses who were close relations of the respondents.
[6] Murder of Shivnarayan by the relations of the respondents only some days after the execution of the Will was very suspicious.

13. Learned counsel for respondent no.2 Shri Kariya placed reliance on the following cases :
1] Shirin Baman Faramarzi .vs. Zubin Boman Faramarzi and another, 2017 (6) Mh.L.J. 115.
2] Raghupati Janardhan Kathale and others .vs. Pundlik Balaji Upadhye and others, 2002 (5) Mh.L.J.102.
3] Kakasaheb Bhaurao Vidhate .vs. State of Maharashtra and others, 2010 (5) Mh.L.J. 533.
4] Balathandayutham and another .vs. Ezhilarasan, 2010 (5) Mh.L.J. 180
5] Dr. Prakash Soni .vs. Deepak Kumar and another, 2018 (2) Mh.L.J. 583
6] Benga Behera .vs. Braja Kishore Nanda, 2007 (9) SCC 728
All the aforesaid case laws have good bearing on the present case and the circumstances discussed in aforesaid paras clearly indicate that the alleged will executed by Kasabai was though a registered document was executed in suspicious circumstances.

14. In these circumstances, the learned appellate Court has rightly come to the conclusion that when the will allegedly executed by Kasabai was not proved by the defendant, the entire property of Kasabai should be reverted to the original family i.e. the relatives of Ambadas. Undisputedly, the plaintiff no.2 being the sole legal heir of Ambadas, the property has to be reverted back to her being the sole representative and successor of Ambadas. In these circumstances, the finding given by the Naib Tahsildar holding Dilip as legal representative of deceased Kasabai is not sustainable.

15. The will shows that although it was running into seven pages, only last page appears thumb impression of Kasabai. On each and every page, there is no thumb impression of Kasabai or the initials put up by the witnesses and the scriber. It appears that since the will was registered after the death of Kasabai, there was no occasion to obtain the thumb impression of Kasabai on each and every page of the will. The question however remains that the attested witnesses no where state that after obtaining the thumb impression of Kasabai, they had put their signatures on the will deed and that the contents were read over to Kasabai. The evidence shows that the witnesses had only identified the thumb impression of Kasabai. The said evidence is insufficient so far as provision under Section 63 (c) of the Indian Succession Act, 1925 is concerned. Section 63 (c) of Indian Succession Act read as under :
63(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 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.
Section 68 of the Indian Evidence Act, 1872 read as under :
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.]
In Shirin Baman Faramarzi (supra) it is held that :
Though Ms. Iyer cited so many judgments and Shri Shetty for caveator submitted almost equal number, the judgment that comes to mind to be looked into to decide this matter is in Janki Narayan Bhoir (Supra). Therefore, before I proceed further, it would be useful to reproduce paragraphs 7 to 12 of Janki Narayan Bhoir (supra), which read as under :
7. We think it appropriate to look at the relevant provisions, namely, Section 63 of the Indian Succession Act, 1925 and Sections 68 and 71 of the Indian Evidence Act, 1872 which read: Section 63 of the Succession Act "63. Execution of unprivileged wills.- Every Testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:- (a) .....
(b) .....
(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 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."
Section 68 of the Evidence Act "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 it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided..."
Section 71 of the Evidence Act "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."
8. To say will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the Testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the Testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the Testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the Testator, or must have received from the Testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the Testator.
9. It is thus clear that one of the requirements of due execution of will is its attestation by two or more witnesses which is mandatory.
10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested 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 an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the Testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the Testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.
21. Execution of a document does not mean mechanical act of signing thedocument or getting it signed but an intelligent appreciation of the contents of the document and signing in token of acceptance of those contents. This proposition of law has been laid down by the Hon'ble Supreme Court in Dhannulal & Ors. (supra). Paragraph Nos. 18 and 19 of the said judgment read as under :
18 "It is evident from the findings recorded by the High Court in the paragraph referred to hereinabove that the Will suffers from serious suspicious circumstances. The execution of a document does not mean mechanical act of signing the document or getting it signed, but an intelligent appreciation of the contents of the document and signing it in token of acceptance of those contents."
19 "Proof of a Will stands in a higher degree in comparison to other documents. There must be a clear evidence of the attesting witnesses or other witnesses that the contents of the Will were read over to the executant and he, after admitting the same be correct, puts his signature in presence of the witnesses. It is only after the executant puts his signature, the attesting witnesses shall put their signatures in the presence of the executant."
22. The Hon'ble Supreme Court in Ravi Purnima Debi (supra) held that the onus of proving the Will is on the propounder. Where, however, there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine. A propounder himself might take a prominent part in the execution of the Will which conferred on him or her substantial benefits. If this is so, it is generally treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the doubts by clear and satisfactory evidence. The Apex Court also went on to hold that mere fact that a Will is a registered Will is not by itself sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. Therefore, the mere fact of registration may not in itself be enough to dispel suspicion that may be attached to execution and attestation of a Will.

16. In the case in hand, both the witnesses were examined, however, they failed to prove the attestation of the Will. Significantly the scriber of the will was not examined. The attesting witnesses do not satisfy the mandatory requirement of Section 68 of Indian Evidence Act.

17. It is the case of the defendants that the Will is proved through the attesting witnesses, however, both the witnesses do not satisfy the requirement of Section 63 (c), inasmuch as they had not stated that Kasabai dictated the will and then put her thumb impression on the said will and therefore these witnesses were called upon to put their signatures on the will. There is no evidence on record of the testator to show that Kasabai put her thumb impression on the will and thereafter they put their signatures on the will. Thus there is no attestation as such of these two witnesses.

18. It is well settled that execution of a document does not mean mechanical act of signing the document or getting it signed but an intelligent appreciation of the contents of the document and signing in token of acceptance of those contents.

19. Advocate for appellant placed reliance upon (1996) 9 SCC 222 (supra) wherein it was held that the facts that Will written in two pages but signature of testator only on the second page and that while the first page written on a stamped paper the second page written on plain paper, concurrently held by courts below to be not unusual practice. Learned advocate submitted that in the instant case both the thumb impressions of Kasabai were not obtained on each and every page of the Will, that does not make the Will doubtful document on this ground. No doubt, in the instant case, the thumb impression of Kasabai was not obtained on each and every paper, however, that was not the only ground to discard the validity of the document. In the instant case certainly the onus shifts on the person who alleges the Will as being forged or obtained under undue influence or coercion to prove the same. The plaintiffs have discharged their burden by pointing out suspicious circumstances which led to the conclusion that the Will executed by Kasabai was a forged document.

20. Thus no interference is called for in the judgment and order passed by the appellate Court. The substantial question of law is answered accordingly. Hence the following order is passed :
Second Appeal No.543/2004 is dismissed.