In SECOND APPEAL NO. 224 OF 1992-BOM HC- Section 63 of Indian Succession Act r/w Section 68 of Indian Evidence Act makes examination of at least one attesting witness necessary for proof of will: Bombay HC Justice Mangesh S. Patil [13-04-2022]

Read Judgment: Eknath Genu Pawar and ors v. Dattu Santram Haral and ors 

Tulip Kanth

New Delhi, April 16, 2022:  Refusing to re-appreciate the evidence when the lower appellate court had reached a well reasoned conclusion, the Aurangabad Bench of the Bombay High Court has held that a person stated to be the attesting witness must see the executant put his/her signature on the will or atleast receive an acknowledgment from him or her about having signed the will and thereafter must himself or herself sign as a witness on the will in presence of the executant.

The Bench of Justice Mangesh S. Patil said, “… in view of the provisions of Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act, examination of atleast one attesting witness is necessary for proof of a will.”

The second appeal in question was filed by the plaintiff. He had succeeded in obtaining a decree for declaration of him being the exclusive owner in possession of the suit properties on the basis of a will executed by one Laxmibai on June 30,1956 who was his maternal aunt. But he was aggrieved by the judgment and order of the lower appellate court which allowed the respondents’ (defendants) appeal, quashed and set aside the judgment and decree passed by the trial court and dismissed the suit.

The factual background of this case was that the appellant with his biological mother Anjanabai filed the suit with the averments that his maternal grand father Ganu Haral was the original owner of the suit properties. After his demise those were mutated in the name of his widow Laxmibai in the government records. Laxmibai died in 1958 and was survived by four daughters Anjanabai, who was initially the first plaintiff, Manjulabai, Gayabai and Sarubai. The respondents are the heirs of Manjulabai. Anjanabai died during pendency of the suit and her name was deleted and it was thereafter prosecuted by the appellant alone. He averred that Anjanabai was maintaining her mother Laxmibai and out of love and affection the latter executed a will on with the consent of all her daughters. 

She bequeathed the suit properties to him and since after her demise he had been in exclusive possession of the suit properties as owner and claimed declaration to that effect.

The respondents contested the suit. They did not dispute the relationship nor did they dispute that Laxmibai was the original owner of the suit properties but denied that she had executed any will and bequeathed the suit properties to the appellant. They further contended that all the entries in the revenue record were false and fabricated. A bogus will had been brought into existence. They also denied that he was in exclusive possession of the suit properties. They further contended that Laxmibai had gifted the suit properties to her daughter Manjulabai on by way of a registered gift deed and on that basis Manjulabai alone had become the exclusive owner and was in possession of the suit properties. Out of one of the suit properties Manjulabai sold part of it to the fifth respondent. 

The trial court decreed the suit holding that the will was duly proved and the appellant had acquired the ownership and possession of the suit properties. The respondents preferred the appeal before the lower appellate court which allowed it. Hence, this appeal was filed.

At the outset, Justice Mangesh clarified that apart from the fact that there was concurrent finding of fact by the courts below holding that the respondents had failed to prove that Laxmibai had gifted the suit properties to Manjulabai, they having not preferred any cross objection before the lower appellate court, the issue to that extent did not survive. Consequently, the entire fate of the second appeal hinged on the proof or otherwise of the will being propounded by the appellant.

The Bench noted that the appellant being the interested person, his testimony couldnot be readily believed. It was observed that when the law requires a will to be attested and to be proved by examining atleast one attesting witness, it is highly imperative that a person stated to be the attesting witness must have seen the executant put his/her signature on the will or atleast receive an acknowledgment from him or her about having signed the will and thereafter himself or herself signs as a witness on the will in presence of the executant. Considering this aspect the Bench noted that this was where the testimonies of prosecution witnesses who were posed to be the attesting witnesses drearily lacked. 

These attesting witnesses simply stated about Laxmibai having signed on the will and they had  placed their respective thumb impression/signature but had not specifically stated about these things having happened in each other’s presence. It is true that the witnesses inter se may not sign on the will in each other’s presence but it is necessary that the executant places the signature on the will in their presence and vice versa that is, they place signature in presence of the executant. Both these witnesses had not stated about having placed their thumb impression/signature in presence of Laxmibai, added the Bench.

According to the Bench, it was correctly noted by the lower appellate court though Sarubai (third prosecution witness) was one of the daughters of Laxmibai and was being excluded from the bequest and was being divested of her possible inheritance, she did not support the appellant in material particulars. She on her own in her examination in chief expressed ignorance about any will executed by Laxmibai in favor of Anjanabai. Incidentally, she expressed ignorance about any gift of the suit properties by Laxmibai in favour of Manjulabai. The lower appellate court had correctly noticed that this witness even failed to state any thing about Laxmibai’s disposing state of mind.

Moreover,Vitthal, the fourth prosecution witness, stated that the will was scribed in his presence and it was read over to everybody and Laxmibai having put her thumb impression on it and it bears his signature and signature of Sarubai and one Devrao as also the scribe, but he did not state either about Laxmibai having placed her thumb impression in his presence and he himself having signed it in her presence

Considering these factual scenarios, the High Court thus affirmed the lower appellate Court’s view by stating, “If in view of such a state of evidence the lower appellate court has reached a well reasoned and a plausible conclusion, in my considered view, this court in exercise of the powers under Section 100 of the Code of Civil Procedure cannot reappreciate the circumstances and evidence to reach a different conclusion. It is trite that a will has to be strictly proved. When the lower appellate court has demonstrated that the will being propounded by the appellant was not duly proved, the conclusion is, indeed, unassailable.”

Referring to the judgment in Gurdev Kaur & Ors vs Kaki, A.I.R. 2006 Supreme Court 1975, wherein it was held that jurisdiction under Section 100 of the CPC is so limited that even a wrong or grossly unexcusable finding of fact cannot be interfered with, Justice Mangesh noticed that when the facts and circumstances and the evidence on the record are sufficient to demonstrate that the reasoning adopted by the lower appellate court is on correct appreciation of fact and law and when it has taken a plausible view about the will having not been duly proved, it would not be correct to re-appreciate the evidence and to reach another conclusion.

Thus,concluding that none of the substantial question of law formulated by the  advocate for the appellant arose in this second appeal, the Bench dismissed the same with costs.