Badri Lal vs Smt. Suraj Kanwar (deceased) represented by Ghasi Lal

Surendra Nath Bhargava, J.—This is defendant''s second appeal against the judgment and decree passed by the Civil Judge, Bundi, accepting the appeal and setting aside the judgment and decree passed by the Munsif, Bundi and decreeing the plaintiff''s suit for declaration that the Will executed by the deceased Jagannath on 21-6-1966 in favour of Badrilal (defendant appellant) was invalid.

Smt. Suraj Kanwar (plaintiff) filed the present suit stating that she is the validly married wife of Jagannath who is alleged to have made a Will on 21-6-1966 in favour of Badrilal depriving her from the ancestral property of the Joint Hindu Family.

The suit was contested on several grounds and the trial Court on the pleadings of the parties framed as many as 9 issues, and held that the ''Will'' was duly executed by Jagannath and is effective.

4 On appeal, the learned Civil Judge, Bundi, set aside the judgment and decree of the trial Court and held that the ''Will'' dated 21-6-1966 by Jagannath in favour of Badrilal is invalid and does not curtail rights of the plaintiff Suraj Kanwar, and decreed the suit. Hence this appeal.

Shri B.P. Agrawal, the learned counsel for the appellant, has very vehemently argued that the judgment of the first appellate Court is erroneous in as much as the defendant had examined Sheokaran as DW 2 who has proved the Will (Ex. A 1) and it was not necessary to examine other attesting witness, Khushal Chand. It is also submitted that the defendant has also examined Durga Shanker Das scribe of the ''Will'', and he has also proved the attestation. Shri Agrawal has placed reliance upon Section 68 of the Indian Evidence Act, and further submitted that since the plaintiff, herself, had admitted that the ''Will'' bear the signatures of Jagannath, it should be deemed to be sufficient proof of execution of the ''Will'' and in this connection he placed reliance upon the provisions of Section 70 and Section 71 of the India Evidence Act.

In support of this above submissions Shri Agrawal has placed reliance upon the decisions as mentioned below:

(1) Vishnu Ramkrishna Wani Vs. Nathu Vithal Wani, (2) Ghansilal Vs. Smt. Bhuridevi, (3) Ghansilal Vs. Smt. Bhuridevi, (4) Smt. Naraini Vs. Pyare Mohan, (5) Seth Beni Chand (Since Dead) Now by L.Rs. Vs. Smt. Kamla Kunwar and Others, (6) Sita Ram Vs. R.D. Gupta and Others, (7) Ujagar Singh v. Chanan Singh AIR 1986 P & H

On the other hand, Shri Ajeet Kumar Bhandari, the learned counsel for the respondent, has submitted that the requirement of Section 63 of the Indian Succession Act, 1925, have not been fulfilled in this case. Shri Bhandari has further submitted that Sheokaran (DW 2) who has been examined as an attesting witness, has stated on oath in the Court that Jagannath had executed the ''Will'' and he had signed in his presence but since he was an illiterate, he could not recognise the signatures of Jagannath. Sheokaran (DW 2) has of course proved his own signatures on the ''Will''. He has further stated that the ''Will'' was scribed by Namonarain. In cross examination, he has staled that Mangilal Patwari was another attesting witness, Sheokaran (DW 2) does not any that Mangilal has also signed in his presence as attesting witness. On further cross examination, Sheokaran (DW 2) stated that he does not know Khushal Chand, whereas, Durgashanker (DW 3) has been examined by the defendant as scribe of ''Will'', who has stated that Sheokaran and Khushal Chand had attested the ''Will''

A look at the''Will''(Ex. A1) shows that it bears that signatures of Sheokaran and Khushalchand. It does not bear signature of either scribe, or Mangilal, the other attesting witness according to Sheokaran (DW 2) and, therefore, Shri Bhandari has submitted that the defendant has miserably failed to prove that the Will has been attested by the two witnesses and since the ''Will'' does not bear the signatures of the scribe, cannot be treated as another attesting witness. In this connection, Shri Bhandari placed reliance upon the judgment in Rodu Framraze v. Kamta Varli AIR i946 Bom 12 Girja Datt Singh Vs. Gangotri Datt Singh, T. Venkat Sitaram Rao and Another Vs. T. Kamakshiamma and Others, 9. I have given my thoughtful consideration to the whole matter and have also gone through the record of the case as well as the judgments of the court below.

The requirement of Section 63(c) of the Indian Succession Act, 1925, is 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 testator 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, provides 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. Whereas, Section 70 of the Indian Evidence Act, 1872, the admission of a party to an attested document of its execution by shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

Admittedly, the testator (Jagannath) had died, and he, himself could not admit execution of the Will and the so called admission is by the plaintiff. Smt. Suraj Kanwar, who has admitted that the Will bears the signatures of Jagnnath. The defendant has examined Sheokaran (DW 2), one of the attesting witness, who has only deposed that Jagannath had executed and signed the Will in his presence but, he was unable to identify the signatures of Jagannath on the Will as he was illiterate. Sheokaran Dass has further stated in cross examination that Mangilal Patwari was another attesting witness. He does not say that Mangilal also signed the Will in his presence as attesting witness and in the presence of Jagannath. A look at the original Will shows that Sheokaran and Khushalchand have signed the Will. There is no endorsement that they have signed the Will as attesting witnesses or usual endorsement that the testator has signed in their presence and they have signed in the presence of the testator as desired by him. Original Will only bears the signatures of Sheokaran and Khushalchand. Khushalchand another attesting witness has not been examined and no other evidence has been led that Khushalchand has died or was not available during the trial for adducing his evidence. Sheokaran (DW 2), the sole attesting witntess stated in cross examination that he does not know Khushalchand.

The learned counsel for the appellant has argued that the defendant has examined Durgashanker (DW 3) who is scribe of the Will (Ex. A I) and who has stated on oath that Jagannath has signed the Will in his presence and it was attested by Sheokaran (DW 2) and Khusal Chand. But, the Will does not bear the signatures of Durga Shanker. The authorities cited by the learned counsel for the appellant are distinguishable because, in all these cases, scribe had put his signatures also on the Will. Moreover, Sheokaran (DW 2) has stated on oath that it was Namonarain who had scribed the Will (ExA 1). All this makes the whole thing suspicious.

As has been held by their Lordships of the Apex Court in Seth Beni Chand v. Smt. Kamla Kunwar (supra), the onus probandi lies in every case upon the party propounding a Will, and he must satisfy the conscience of the court that the Instrument so propounded is the last Will of a free and capable testator, and the requirement of Section 63 of the Indian Succession Act, 1925, have been fulfilled.

I am afraid that in the present case, the defendant has utterly failed to prove that the Will was executed in accordance with law, and in my opinion, the judgment of the first appellate court does not suffer from any error and, therefore, I do not find any force in this appeal.

In the result, this appeal fails and is hereby dismissed with costs.