Manjula Chellur, J.@mdashThis appeal is filed by the 1st Defendant before the trial Court against whom the first Respondent herein had filed original suit for grant of probate or in the alternative letters of administration in respect of a Will dated 16.3.1994. In brief the facts of the present case are as under:
2. One Lawerence D''Mello had four sons and four daughters. He was permanent resident of Haneesh Villa, Ambedkal, Nitte Village of Karkala Taluk. He died on 27.9.1994 leaving behind the suit schedule property and also other properties. Prior to his death when he was in sound disposing state of mind executed a Will on 16.3.1994 in respect of 24 cents of land consisting of a house in Sy. No. 629/1B, and 38 cents in Sy. No. 721/7B situate at Nitte Village. Under the Will, the said properties were bequeathed to the Plaintiff-Henry D''Mello. The said document was also registered before the Sub-Registrar, Karkala, and the same was executed in the presence of witnesses. No executor was appointed.
3. The Appellant herein is the first Defendant who contested the matter denying the very execution of the Will and so also registration of the Will. He alternatively contended even if such Will was executed it must have been obtained under misrepresentation, fraud and undue influence. The deceased had equal love and affection towards all his children therefore he could not have disinherited some of his children favouring one son.
4. Based on the same, several issues were framed as under:
1. Does the Plaintiff prove that the deceased Lawrence D''Mello had duly executed the Will dated 16.3.1994 in a sound disposing state of mind?
2. Does the Plaintiff prove that deceased had competence to execute the Will in respect of properties shown in the Will?
3. Is the Plaintiff entitled to grant of probate in the alternative for Letters of Administration?
4. To what reliefs?
5. Appreciating the oral and documentary evidence on record the learned Judge came to the conclusion that the deceased executed the Will in favour of the Plaintiff when he was in sound disposing state of mind and therefore ordered for issue of probate.
6. Aggrieved by the same, the present appeal is filed contending that in order to prove the due execution of a Will one must prove due attestation and then due execution.
7. According to the learned Counsel for the Appellant mere calling of one of the attestors will not comply with the due attestation and due execution unless and until the said witness speak to the attestation of the Will. Therefore in view of the so called attestor-P.W.2-Kudu Shetty not supporting the case of the Plaintiff, it was incumbent upon the Plaintiff to call upon the other attestor. He further contended that the evidence of Sub- Registrar and the scribe who are examined as P.W.3 and 4 in this case cannot be equated as the evidence of attestor in view of the various decisions relied upon by him hereinafter mentioned. He further contended that the suspicious circumstances which surround the alleged Will Ex.P.3 are not at all removed, therefore the suit of the Plaintiff ought not to have been decreed. The suspicious circumstances according to him are the house mentioned at schedule of Ex.P.3-Will was very much in existence at the time of execution of Ex.P.2-General Power of Attorney, therefore, the question of Plaintiff constructing the house would not arise. The other suspicious circumstance is, excluding the Appellant herein completely from the inheritance of any property as 62 cents with house was bequeathed to propounder and rest of the properties would go to other two sons and this is very unnatural and therefore the Will Ex.P.3 is not a genuine one. He relied upon several decisions as follows:
8.
9.
The word ''attested'' occurs in Section 3, T.P. Act, as part of the definition itself. To attest is to bear witness to a fact. The essential conditions of a valid attestation u/s 3 of T.P. Act are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement of his signature ; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animus testandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement 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 a registering officer, he is not an attesting witness.
Prima facie, the registering Officer puts his signature on the document in discharge of his statutory duty u/s 59 of the Registration Act and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgement of his signature.
10.
In this case it was held that once the execution of the Will is denied by the alleged executant the document cannot be admitted in evidence, unless one attesting witness atleast has been called for proving the execution of the document, if alive, and subject to the process of the Court. In that case there was no evidence to show that the attesting witnesses were not alive and none of them were examined. Therefore, the requirement of Section 68 of the Indian Evidence Act has not been complied with and as such the Will could not be used in evidence.
11. The other decision is
12.
13. What is said in this case is that unless the witness is called and examined before the Court by taking recourse to compel his presence, one cannot said to have complied with the provisions of Section 68 of the Evidence Act. Without exhausting the remedies as mentioned above exception provided u/s 71 of the Evidence Act cannot be pressed into service.
14. AIR 1978 Mad. 78 (Doraiswami v. Rathnammal and Ors.). In this case it was held Section 69 of the Evidence Act come into play only when the attesting witness cannot be found. If the attesting witness is available even Section 71 for proof of execution of document will come into play. In this case, a Will was alleged to have been executed by the deceased-testatrix before her death. Only one attesting witness was alive who deposed that he did not attest any Will. The other witness supporting the case of the propounder was Sub-Registrar who deposed that one woman purporting to be testatrix of document in question came before him and admitted correctness of contents of Will and that she was in good health mentally and physically. The other witness simply identified the signature of his dead father who was one of the attesting witness to the Will, held under those circumstances, the Will was not duly executed as alleged. It was held in this case that the attesting witness who is called before the Court must be in a position to prove the execution of the Will. If one attesting witness is called who speaks to the execution of the Will it is sufficient.
15.
16. ILR 2002 Kar. 4273 (N. Kamalam (dead) and Anr. v. Ayyasamy and Anr.). The relevant paragraphs-28 and 32 read as under:
Para-28: It is on this count that the learned Advocate in support of the appeal very strongly contended that there is existing a responsibility on to the law Courts to deal with the matter having due regard to the concept of justice. Technicalities. It has been contended there may be many - but would that sub-serve that ends of justice ; one needs to ponder over the same. Justice oriented approach cannot be decried in the present day society as opposed to strict rigours of law ; Law Courts existence is dependent upon the present day social approach and thus cannot and ought not to be administered on sheer technicalities. The discussion of the law as above, definitely make us ponder over the legal aspects once more since the tenor of the observations contained therein obviously looked into being in favour of the technicality rather a justice oriented approach and in that perspective let us now have a review of the whole situation on the factual context. Masaney Gowder executed a Will said to have been written by one Arunachalam and attested by Subayya and Govindaraju. The two attesting witnesses were not called to give evidence against them-why it has not been done? The explanation has been that both the attesting witnesses were inimical towards Appellant and as such there was a refusal on their part to come to Court and prove the document - how far however the same is an acceptable evidence ; We will have to examine ; but before so doing the factum of non-availability of the attesting witnesses cannot be discarded and if so, what would be its consequences. The application for additional evidence as dealt with herein before, was made after a lapse of about 10 years after the appeal was filed and the learned judges thought it fit to reject such a prayer and we also do lend out concurrence thereof without taking any exception-but then what is the effect? We have thus existing on record a document said to be a Will of one Masaney Gowder whose signatures stand accepted and two attesting witnesses though named in the body of the document were not made available but the writer of the Will or the scribe came forward and deposed as to the state of affairs on the date of signing of the Will, it would be convenient thus to note the evidence of the scribe and see for ourselves as to whether even a justice oriented approach would be able to save the Will in the absence of the attesting witnesses. Arunachalam stated in his examination-in-Chief as below:
I have written Ex.A.1 ''THE WILL'', I have written the WILL EX.A1 for the sake of Masane Gowder. The said Masane Gowder has been introduced to me by the Advocate G.M. Nathan who was formerly have. During the execution of the WILL, Advocate G.M. Nathan was residing at Thomas Street. At that time Masane Gowder was residing at the same place after one house of Advocate''s home. Before the preparation of the ''WILL'' I had been to his house and discussed with him about the details and he has stated the details. At that time Masane Gowder Mental and Physical status were found good. After writing the Ex.A.1 the Will, I have read out the same to him, and he had stated that all were correct. Then in my presence Masane Gowder had affixed his thumb impression in each page. The affixing of thumb impression by Masane Gowder in Ex.A1 WILL had been witnessed by attestor Subbaiah, Govindaraju and myself. The singing of signature for witness by us, was eye witnessed by Masane Gowder. After the Ex.A1 Will, had been prepared and signed I handed over the ''WILL'' to Masane Gowder.
Para-32: While it is true that Arunachalam, in the facts of the matter under consideration did write the Will and has also signed it but it is of utmost requirement that the document ought to be signed by the witnesses in order to have the statutory requirement fulfilled. Arunachalam has signed the document as a scribe not as a witness, if there were no signatures available as witness, probably we would have to specifically deal with such a situation and consider that aspect of the matter but presently in the facts situation of the matter under consideration, we have the advantage of two attesting witnesses, none of whom have been examined and the factum of their non-availability also does not satisfactorily been proved. The requirement of the statute when Arunachalam himself has specifically identified himself as Writer and not as a witness though in his evidence, he tried to improve the situation, but this improvement however, cannot said to be accepted. The Will thus fails to have its full impact and its effect stands out to be non est.
17. The learned Counsel for the Respondents-Plaintiffs relied upon the following citations:
1980 (1) KarLJ 89 (Ganapatsa Govindasa and Ors. v. Ningappa Ramappa and Ors.). In this case their Lordship have held as under:
Held: (i) The trial Court was not justified in holding that the Will not proved, merely on the ground that the attestors did not support it. The Court was competent to disregard the testimony of the attesting witnesses and pronounce in favour of the Will on other evidence.
(ii) A finding on the validity of the Will was uncalled for in the case. If the Will was valid, the Will gave Plaintiff right to proceed against the legatee. If the Will was not valid, the Plaintiff could proceed against the L. Rs. of M.
(iii) the Court ought to take note of the subsequent event (re- assignment) to work out the rights of the parties instead of driving them to fresh litigation.
The fact that the re-assignment deed was unregistered was immaterial as it was not a document compulsorily registrable. When the agreement itself is not compulsorily registrable, the deed of assignment of rights thereunder cannot be placed on a higher pedestal.
(iv) u/s 87(3) of the Karnataka Land Revenue Act, 1964 when the land is restored to the defaulter, the vesting is not free from encumbrances ; and therefore was not free from the obligations under Ex.P.1.
(v) Plaintiff must be held to be aware at the time of entering into the agreement that the lands were forfeited to Government. Even assuming that Plaintiff became aware of the forfeiture only after the agreement was entered into, he did not choose to avoid it on that ground. Not having avoided the agreement, Plaintiff ought to have deposited amount due to Government when the application for restoration was made. If he was willing nothing prevented him from depositing the amount immediately after order for restoration. Hence, Plaintiff cannot be held to have been ready and willing to perform his part of the agreement and was not entitled to specific performance.
18.
The circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of the testatrix whereas the objectors descendants of a full blood sister, the disinheritance of the latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the Will. The identification by the lawyer could have been regarded as a suspicious circumstance if a wrong person would have been identified as the testatrix. That, however, is not the case of the objectors. So, there is no bane in this circumstance. The third circumstance cannot also be said to be suspicious. Witnesses in such documents verify whether the same had been executed voluntarily by the person concerned knowing its contents. In case where a Will is registered and the Sub-Registrar certifies that the same had been read over to the executor who, on doing so, admitted the contents, the fact that the witnesses to the document are interested loses significance. The documents at hand were registered and it is on record that the Sub-Registrar had explained the contents to the old lady. Objection as regards ''ubiquitous'', cannot be there if there be other circumstances on record to show the voluntary character of the document. Such circumstances were present in this case. Taking total view of the circumstances, which has to be the approach, it must be held that the Courts below overplayed some circumstances which they regarded as suspicious and somehow missed some circumstances which bolstered the case of the propounders.
19.
Brief Note: (A) The propounder has to show that the Will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free Will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine ; and where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the Will had been obtained by fraud or undue influence, a probate of the Will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind. AIR 1959 SC 426 ;
In the instant case it was held that the Will was genuine. All the formalities required were fully satisfied, it was executed by the testator in a sound disposing mind and it was duly attested as required by law. The caveator has failed to prove the undue influence as alleged by him in execution of the Will by the testator in favour of his new wed wife.
20. AIR 1984 NOC 101 (Punj. and Har.) (Ajmer Singh and Anr. v. Tirath Singh and Ors.). In this case it is held as under:
Evidence Act (1 of 1872), Section 68, 71.-Will-Witness denying attestation - Execution can be proved by other evidence - Held execution by testator and attestation by two witnesses stood duly proved by evidence of scribe and Sub-Registrar.
21. AIR 1984 NOC 51 (Punj. and Har.) (Smt. Man Kaur and Ors. v. Gurnam Singh and Ors.). In this case it is held as under:
(A) Succession Act (39 of 1925), Section 59- Execution of Will proved by reliable and cogent evidence - Presumption is that testator was sane and had sound testamentary capacity. (Evidence Act (1872) Section 114).
(B) Succession Act (39 of 1925), Section 61 - Will - Suspicious circumstances.
A testamentary disposition of property is generally restored to deprive the natural heirs or some of them of the property. The mere fact that some of the natural heirs had been deprived of the property does not by itself create a suspicious circumstance attaching to the execution of the Will.
22. 1983 (1) Kar. L.J. 183 (Chinna Narasimhalu v. Kurubara Basappa and Anr.). In this case it is held as under:
A witness to be an attesting witness need not be labelled as an attesting witness.
The place at which the signature or thumb impression of a witness is subscribed to the document is not a determining factor for holding that a witness is or is not an attesting witness.
What is required to be seen is as to whether the evidence of the witness reveals that he has signed the document in the presence of the executant after seeing execution of the document or that he has signed the document after receiving the personal acknowledgement from the executant as regards the execution of the document.
In the case of documents which are not compulsorily registerable, the Sub-Registrar or other identifying witnesses can be regarded as attesting witnesses, if their evidence is in conformity with the law relating to attestation.
Where the lower Court held that the Will was not valid on the ground that the witness had not signed at the place intended to be signed by attesting witnesses and therefore he cannot be considered to be an attesting witness, without considering the evidence of the witness, and therefore the legatee could not be brought on record as L.R. of the deceased party, the Judgment suffers from a serious infirmity and the order of the Court under Order 22, Rule 4 and 5 of CPC is revisable.
23. 1980(1) Kar. L.J. 89 (Ganapatsa Govindasa and Ors. v. Ningappa Ramappa and Ors.). In this case relevant paragraph 17 reads as under:
17. On the validity of the Will, it seems to us, that it would be proper not to express any opinion in this case. A finding on that question appears to be uncalled for. Even if the Will is valid, the Plaintiff''s suit cannot be thrown out. Ext.P.1 gives him the right to proceed against the legatee. If the Will is not valid, the Plaintiff could proceed against the legal representatives of Masabi. The fate of the suit does not depend upon the genuineness of the Will, the investigation of which is therefore, uncalled for in this proceedings. We may however, observe that the trial Court was not justified in holding that the Will was not justified in holding that the Will was not proved merely on the ground that the attestors to the deed did not support it. "An attesting witness who denies attestation may be contradicted by other evidence and the Court is competent to disregard the testimony of the attesting witnesses and pronounce in favour of the Will if it is satisfied from the evidence collectively or from the circumstances of the case that the requirements of law have been complied with and the witnesses who had spoken against the Will had not spoken the truth." Vide Kedar Nath v. Rajkumar (1) We may also make it clear that the proof of a Will is not a matter of mere dispute between contending parties as in ordinary actions. It is a matter which falls for satisfaction of the judicial conscience of the Court. If a Will is surrounded by any suspicious circumstances as it is in the present case, it is always for the propounder to satisfy the Court by removing such suspicions by cogent and satisfactory evidence. We leave it at that for any aggrieved party to challenge it in an appropriate proceeding and we are told that the validity of that Will is already under consideration in a suit as between some of the legal representatives of Masabi.
24. Both Counsels relied upon
Para-4. It is alleged that Dwijendra Nigam, an Advocate, conspired Jaggo Bai''s pre-deceased daughter''s son Ratan Lal to forge the Will. But from the long and varied cross-examination of Nigam it is difficult to discover any reason why he should do so. He received no benefit under the Will and had no interest either in seeing that the progeny born of Beni Chand''s first two wives should get the property or in ensuring that Beni Chand. Ved Kumari and their children should be left out. It is significant that Beni Chand who alleged by his cavear that Nigam was the villain of the piece, did not file any affidavit in support of his caveat and what is more important, he did not enter the witness-box to substantiate his accusation. The charge that Nigam and Ratan Lal forged the Will is thus left to chance and guess work. As for Ratan Lal, who is Respondent-2 to this appeal, he admitted the execution of the Will though it was against his interest to do so. If the will is set aside, Beni Chand and Ratak Lal will each be entitled on intestacy to a moiety in Jaggo Bai''s estate, which was her Strindhana property. Ratan Lal gets nothing under the Will of his grand mother Jaggo Bai.
Para-6: Two circumstances would appear to have influenced the Judgment of the learned Single Judge in holding that the Will was not proved to be last Will and testament of Jaggo Bai. The first circumstances is that the thumb-mark which Jaggo Bai is alleged to have made on the Will does not bear the usual endorsement that it is of the left or the right thumb and secondly that neither of the two attesting witnesses was examined to prove the formal execution of the Will.
Para-7: The Division Bench of the High Court, sitting in appeal against the Judgment of the learned Single Judge, has accepted the explanation offered by Shri. Nigam that the endorsement remained to be made through inadvertence Nigam had no personal interest in the matter and the explanation being unmotivated, could reasonably be accepted. The learned Judges also accepted the evidence of the Advocate that he himself held that right hand of Jaggo Bai and took the impression of that thumb on the Will. That meets the argument that an impression admitted to be of Jaggo Bai''s left thumb does not tally with the one on the Will. It will not tally since the two thumbs would have different characteristics. The Will was executed in triplicate, one copy of which was deposited with the District Registrar on October 28, 1961, that is, two days after the Will was executed. It is difficult to believe that a practising advocate would run the risk of depositing a forged Will with a public official while the testatrix was still alive. Beni Chand lived in the same town as his mother, though separately from her, and it is impossible in the very nature of things that as alleged by him, Nigam and Ratan Lal took the thumb impression of Jaggo Bai while she was lying unconscious. Jaggo Bai might have lost her consciousness but she was possessed of a large estate and in the normal course of human affairs, she would, while unconscious, be surrounded by a large number of close relatives of which there were many in the town of Banda in which she lived. To think that Nigam could steal a thumb impression of the dying woman puts a strain on one''s credility, particularly when he stood to gain nothing and Ratan Lal, the alleged co-conspirator, would be better of without the Will. It is a strange Plea that Ratan Lal who, on intestacy stood to gain a one-half share in his grand mother''s estate chose to exclude himself by fabricating the Will. There is some evidence that a portion of Jaggo Bai''s right thumb was mutilated but on examination of the relevant circumstances in that behalf, the Division Bench of the High Court has rejected the suggestion that the right thumb of the testatrix was so badly damaged as to be incapable of producing an impression. With these plain findings of fact, we see no reason for interfering by going into minute details of the evidence.
Para-8. There is no substance in the grievance that the proof of the Will in this case is incomplete for want of an attesting witness''s evidence. Section 68 of the Evidence Act deals with proof of the execution of documents required by law to be attested. It provides that such documents shall not be used as evidence until at least one attesting witness has been called to prove the execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Since by Section 63 of the Succession Act, 1925 a Will has to be attested by two or more witnesses, Section 68 of the Evidence Act would come into play and therefore it was incumbent on the propounder of the Will to examine the attesting witness to prove due prosecution of the Will. But this statement over looks that Dwijendra Nigam is himself one of the three persons who made their signatures below the thumb impression of Jaggo Bai. None of the three is described in the Will as an attesting witness but such labelling is by no statute necessary and the mere description of a signatory to a testamentary document as an attesting witness cannot take the place of evidence showing due execution of the document. By attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document ; and by Section 63(c) of the Succession Act, an attesting witness is one who sings the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgement from the executant as regards the execution of the document. Nigam''s evidence shows that he and the other two witnesses saw the testatrix putting her thumb-mark on the Will by way of execution and that they all signed the Will in token of attestation in the presence of the testatrix, after she had affixed her thumb-mark on the Will.
Para-10. Bearing these principles in mind and giving equal weightage to openness and vigilance, the position emerging from the evidence may be briefly summed up thus: Beni Chand''s behaviour was far too un-filial and remorseless for him to find a place in the affections of his mother Jaggo Bai. He had bruised her so badly that she could not possibly reward him with a precious inheritance. But she gave her estate not to strangers but to his children born of the first two wives and to the second wife Kamala Kunwar. She also gave him a personal right of residence in one of the houses. Shri. Nigam, the advocate, had no personal motive or bias to hatch a conspiracy to forge the Will. He received no benefit under the Will directly or indirectly. And Ratan lal was the least suitable co-conspirator because, he stood to lose under the Will what he would have got without it. He would have been an equal sharer with Beni Chand in Jaggo Bai''s estate u/s 15(1)(a) of the Hindu Succession Act, 1956. The entire property comprised in the Will was Jaggo Bai''s Stridhana. The Will was read out to Jaggo Bai and in spite of her advanced years she was in a sound state of mind and body. The chosen few do possess that privilege. Thus the executrix has successfully discharged what in the circumstances, was a heavy onus of proving the due execution of the Will and of offering a satisfactory explanation of the suspicious circumstances surrounding the Will. We are in agreement with the Division Bench of the High Court, which was conscious of the special rules governing proof of testamentary instruments, that the Will propounded by the executrix is the last Will and testament of Jaggo Bai, made while she was in a sound and disposing state of mind and memory.
25. In the present case with the above principles we have to look into the facts. P.W.1 is propounder of the Will, P.W.2 is one of the attestors of the Will, P.W.3 is the Sub-Registrar and P.W.4 is the scribe who wrote the contents of the Will-Ex.P.3.
26. The main contention of the learned Counsel for the Appellant is that the other attesting witness ought to have been examined even if there was apprehension in the mind of the Plaintiff that he may not support. He ought to have been called as a witness especially in the circumstances that the other attesting witness P.W.2-Kudu Shetty turning hostile. Therefore, the evidence of P.W.3 and P.W.4 Sub-Registrar and the scribe cannot be equated with the evidence of attesting witness. Hence, the suit of the Plaintiff ought to have been dismissed.
27. The learned Counsel for Respondent No. 1 vehemently argued that a Will requires attestation of two or more witnesses as per Section 63 of the Succession Act and as per Section 68 of the Indian Evidence Act, if one of the witnesses is examined it would mean complying with the provisions of Section 68 of the Indian Evidence Act. On facts, he further submitted that the evidence of P.W.2-Kudu Shetty would definitely lead to the conclusion that though he is aware of the due execution of the Will he is resiling back, as he is won over by the Appellant herein. He further submits the signature of the attesting witness P.W.2 also found as identifying witness at Ex.P.3 would mean he is intentionally not speaking the truth. To ascertain the validity and genuineness of the Will in question, under the circumstances, ought to be from other surrounding facts.
28. In the evidence of P.W.1 the legatee under the Will has clearly deposed that there are two houses in the land in question and in one of the houses his mother is residing which was constructed by his father and another house constructed by himself is assigned in his favour under the Will. The power of attorney was given for the construction of the house and the arguments of the learned Counsel for the Appellant that he has already a house in existence and therefore there was no necessity to give such power of attorney to construct the house do not hold good. The Will was given to him by his mother a month after the death of his father. He pleads ignorance about the details of execution of the Will. Only after seeing the Will he learnt that it was registered. It is noticed that other than 62 cents (disputed land) some more land was owned by the testator. Just because one of the L. Rs. was left out from inheritance straightaway we cannot say that the Will is surrounded by suspicious circumstances. On the other hand the contents of the Will which is marked as Ex.P.3 goes to show that out of the eight children he had four sons and four daughters. All the daughters are married. Out of the four sons Robert D''Mello (D.W.1) i.e., the Appellant herein was in Government service. The first Respondent Henry D''Mello the Plaintiff before the trial Court has constructed the house with his money in the said land, therefore he intends to give the same to the first Respondent herein. He further says he has two more sons by name Edverd and Joseph and they can have their shares in the properties left behind him. The schedule consists of only two numbers i.e., Sy. Nos. 629 and 721 which are now 629/1B and 721/3B measuring 0.624 cents and 0.38 cents respectively.
29. The learned Counsel for the Appellant also argued that out of four sons, four daughters and the wife, only three sons got the properties therefore the Will is surrounded in suspicious circumstances. The Will was made demarcating the property that has to be given to the first Respondent Mr. Henry D''Mello. Under these circumstances, one cannot come to the conclusion that the Will was in favour of first Respondent and the other two sons to the exclusion of other L. Rs. On the other hand, the Will is made in respect of only a portion of the property in favour of one of the sons. Reasons are also given why such a document was made i.e., he was looking after him and he constructed the said house. Then coming to the due execution and proof of the Will, the learned Counsel for both sides have relied upon several decisions of the Apex Court, this Court and also various High Courts as narrated above.
30. P.W. 1 is no other than the propounder of the Will. P.W.2 is one Kudu Shetty who is one of the attestors to the Will. He also happens to be an identifying witness before the Sub-Registrar at the time of the registration of the Will for identifying the executant of the Will. The other attestor who is the uncle of both the parties is not examined.
31. According to the learned Counsel for Respondent he is not examined being the uncle of both the parties as he may not support any of the parties. P.W.3 is the Sub-Registrar who speaks of the executant admitting the contents of the documents and so also the signature of him found at Ex.P.3. P.W.4 is the scribe who speaks to the effect that after writing and reading the contents of Ex.P.3 the executant affixed his signature to the Will.
32. On going through the evidence of P.W.2 Kuddu Shetty one of the attestors this witness though admits his signature on the Will but so far as contents he pleads his ignorance. He says these signatures were taken by the deceased testator on the pretext he requires witness signature for submitting the application to Panchayat Board. He has neither supported the case of the Respondent-Plaintiff not the Appellant-Defendant. Though the other attestor is alive he is not examined. Now the question is whether the scribe and the Sub-Registrar could be considered as attestors in view of the non-examination of other attestor who is alive. As per Section 63 of the Succession Act whenever the question of validity and the due execution of the Will crops up before the Court the Court has to see whether there is due execution of the Will. As per Section 63 of the Succession Act three requirements are necessary. (1) That the testator has signed or affixed his mark to the document of Will or it has got to be signed by some other person in his presence and by his direction (2). 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 by that mark or signature the document was intended to have effect as a Will and lastly (3) the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affixing his mark to the Will or must have seen some other person signed the Will in the presence and by the direction of the testator or must have received from the testator a personal acknowledgement of his signature or mark or of the signature or such other person and each of the witness has to sign the Will in the presence of the testator.
33. The next relevant section would be Section 68 of the Evidence Act. As per this Section if a document is required by law to be attested it shall not be used as evidence unless one attesting witness atleast has been for the purpose of proving its execution is examined, if there be an attesting witness alive and subject to the process of law and capable of giving evidence. Though under Indian Succession Act the requirement is that the Will has to be attested by two witnesses, as per Section 68 of the Evidence Act the execution of the Will could be proved by only one attesting witness being called. Now the question is whether P.W.2 one of the attesting witness has spoken to the attestation in order to prove the due execution of the Will. If such attesting witness establishes before the Court the execution of the Will the other attesting witness can be dispensed with.
34. In the present case though P.W.2 has not established the due attestation of the Will to prove its execution, to supplement his evidence the other witness is not called before the Court though he is alive. Now Section 71 of the Evidence Act says if the attesting witness denies or does not recollect execution of the documents, its execution may be proved by other evidence. But the benefit u/s 71 could be invoked when the attesting witnesses have been called but failed to prove the execution of the Will. But in a case where only one of the attesting witnesses being called who has not supported the due execution of the Will, having failed to summon or compel the presence of other attesting witness who is alive to give evidence in accordance with law, Section 71 of the Evidence Act may not come to the assistance of the Respondent. Definitely the Court is not helpless or powerless when it is satisfied with the fact that witnesses are deliberately and falsely denied that they attested the Will as the Court is entitled to look into other circumstances and the regularity of the Will on the face of it and come to the conclusion on the question of attestation. This would have come to the benefit or aid of the Plaintiff if the other witness was also examined.
35. In view of the principles laid down by the Apex Court in ILR 2002 Kar. 4273, the scribe and the Sub-Registrar who have come to depose before the Court regarding writing of the document and the due registration of the document cannot be held to have proved due attestation required under law.
36. Under these circumstances, the appeal deserves to be allowed setting aside the Judgment and decree dated 23.6.1998 in O.S. No. 4 of 1996 on the file of the III Additional District Judge, Dakshina Kannada, Mangalore by holding that the Plaintiff-Respondent I herein has failed to prove the due execution of the Will. Accordingly, the following order is passed.
37. Accordingly, the appeal is allowed setting aside the Judgment and decree dated 23.6.1998 in O.S. No. 4 of 1996 on the file of the III Additional District Judge, Dakshina Kannada, Mangalore. No order is made towards costs.
