@JUDGMENTTAG-ORDER
Sriinvasan, J.@mdashOne Rajagopala Iyengar died on 10.1.1976, leaving his first wife by name Jayalakshmi Ammal, the petitioner herein, and
second wife Dr. Kamala. The latter filed a suit O.S. No. 55 of 1976 on the file of Sub Court, Thanjavur, for partition and separate possession of
one half of the properties left by the deceased husband. The suit was contested by the petitioner mainly on the ground that Rajagopala Iyengar had
executed a will disposing of his properties in a particular manner. The Subordinate Judge, Thanjavur, rejected the contentions of the petitioner and
passed a preliminary decree on 29.11.1980 declaring that the plaintiff was entitled to half share in the properties mentioned in the decree. The
petitioner filed A.S. No. 391 of 1981 in this Court challenging the decree. The appeal was dismissed on 22.6.1987. Dr. Kamala died on
1.12.1987. The respondent filed an application for passing of final decree along with an application to bring herself on record as the legal
representative of the deceased plaintiff. The respondent claimed that the deceased had bequeathed her properties by a registered will dated
27.1.1976 in her favour and thus, she was the only person entitled to the properties of the deceased. The petitioner contested the application
challenging the genuineness and the validity of the will propounded by the respondent. The Subordinate Judge, Thanjavur, has accepted the case of
the respondent and ordered her application to implead herself as a party to the proceedings in her capacity as legal representative of the deceased
plaintiff. It is the said order which is questioned in this revision petition.
2. It is argued vehemently by learned Counsel for the petitioner that the evidence adduced on the side of the respondent in the court below does
not satisfy the requirements prescribed by the Evidence Act and the Indian Succession Act for proving due execution of a will. According to
learned Counsel, the burden is on the respondent, the propounder of the will, to prove that the same was executed in accordance with the
procedure prescribed by law and in the present case, the respondent has miserably failed to do so. It is argued that the evidence of the Sub
Registrar, who has been examined as P.W. 1, who proved the registration of the will, cannot be treated as evidence of due execution of the will
and the evidence of P. W.2, a vakil''s clerk, is not sufficient in law to prove the due attestation of the will. In short, his contention is that the
evidence placed before court by the respondent is no evidence in law and the order of the lower court is, therefore, vitiated by illegality. He
submits that at any rate, this Court should interfere u/s 115 of the CPC in the interests of justice. According to him, justice requires that the
surviving widow of the deceased Rajagopala lyengar, should take his estate in entirety as against a sister of the other widow, who claims only as a
legatee under the will.
3. In the counter affidavit filed by the petitioner in the court below, the relevant plea is found in the following sentence:
It is obvious the Applicant has procured the Will either by undue influence and coercion or by forgery.
Excepting the said omnibus plea, there is nothing in the counter affidavit worthy of consideration. The petitioner has not referred to any suspicious
circumstances surrounding the execution of the will. It is seen that the last part of the plea is inconsistent with the previous part. If the will was
procured by undue influence or coercion, it could not be a forgery and if it was a forgery, there is no question of undue influence or coercion. The
petitioner is not clear in her pleading. The petitioner has not referred to any circumstance from which the court could infer that the propounder had
played a part in bringing the will into existence.
4. It is not in dispute that the propounder was the younger sister of the deceased plaintiff. In her affidavit she has described herself as a retired
Professor of Education. In the will her educational qualification in slated to be M.A., M.Ed., The will gives her address as 3, Dharma Praksh
Chawl at Kudand in Bilaspur, Madhya Pradesh Slate. According to the recitals in the will, she was working as a Principal of a Women''s College
at Bilaspur at that time. No attempt has been made by the petitioner to contest the correctness of the said recitals in the will as regards the status
and educational qualification of the respondent. The testatrix was herself a retired Medical Officer of the Pondicherry Government. She was living
in Bangalore and she had been to Thanjavur in connection with the obsequiel ceremonies following the death of her husband. Thus, the undisputed
facts are that the testatrix was a highly educated person with rich worldly experience and had retired from Government service, whereas the
legatee, who was her sister, was also highly educated, working as the head of an educational institution and living far away from the testatrix. The
will in question was undoubtedly presented for registration on 27.1.1976 and registered as Document No. 4 of 1976 in Book 3 Volume 122 on
29.1.1976 by the Joint Sub Regisirar-I at Thanjavur. The said Sub Registrar has appeared before court and given evidence that he registered the
will in the normal course of his official duties. No suggestion has been made in the cross-examination that he was interested in giving evidence in
support of the respondent. The very fact that he deposed that he did not know the testatrix personally previously, shows that he was speaking the
truth before the court. His evidence is sufficient to make out that a person claiming herself to be Dr. Kamala Rajagopalan appeared before him and
presented the will for registration stating that it was executed by her. The testatrix died nearly 12 years alter the registration of the will. Unless a
definite case is pleaded by the petitioner that somebody was interested in impersonating the testatrix as early as in 1976 and getting a will
registered as if it was her will, the court is not entitled to make surmises and assume anything contrary to the document. The court is bound to
apply the presumption u/s 114 of the Evidence Act and hold that the will was presented for registration by its executant and registered properly in
accordance with law. The plea of undue influence or coercion cannot stand scrutiny for a moment. There is not even a plea that the testatrix was of
weak intellect so as to be influenced unduly by another person. It is too much to say that the undue influence or coercion continued for a period of
nearly twelve years and the testatrix had no opportunity to change the will during her life lime. The plea of forgery is equally reckless. The
undisputed facts already referred to are sufficient to throw out the same.
5. P.W. 2 is a vakil''s clerk. He has been examined to speak about the signatures of the attestors found on the will. Both the attestors were
admittedly advocates'' clerks. They have not only attested the will, but also identified the testatrix before the Sub Registrar. Admittedly, both are
dead and not available to give evidence. The evidence of P. W.2 is sought to be discredited by his statement in the cross-examination that he had
not seen the two persons attesting any other document. His evidence is quite natural and there is no reason to disbelieve his version that he being
an advocate''s clerk, was acquainted with the signatures of two other advocates'' clerks working in the same place, though they were seniors to
him.
6. Though I have myself considered the acceptability of the evidence of P.Ws. 1 and 2 in order to satisfy myself that there is no miscarriage of
justice in this case, strictly speaking it is not my function to appreciate the evidence. I am sitting in revision and I should only see whether the order
of the court below is vitiated by illegality or material irregularity and whether there is any error of jurisdiction. It is only for the purpose of bringing
the case within the four corners of Section 115 of the Code of Civil Procedure, learned Counsel for the petitioner submits that the evidence of
P.Ws. 1 and 2 is not legal evidence. I do not agree with him. I find that the evidence is acceptable in law and no exception can be taken to the
same having been accepted by the court below.
7. The law on this subject is found in Sections 47 and 67 to 69 of the Indian Evidence Act. Section 67 of the Evidence Act requires that if a
document is alleged to besigned or to have been written wholly or in part by any person, the signature or the handwriting must be proved to be in
his handwriting. Section 47 of the Evidence Act makes relevant the opinion of any person acquainted with the handwriting of the person by whom
the document is supposed to be written or signed that it was or was not written or signed by that person. The explanation to Section 47 on which
considerable reliance is placed by learned Counsel for the petitioner, is in the following terms:
A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents
purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in
the ordinary course of business, documents, purporting to be written by that person have been habitually submitted to him.
Section 68 of the Evidence Act requires that in order to prove a document required by law to be attested, at least one attesting witness should be
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. The proviso contains an exception and excludes a document not being a will, which has been registered in accordance with the
provisions of the Indian Registration Act, unless its execution is specifically denied. A will even if registered, falls under the main Section, as it is
excluded from the purview of the proviso. Section 69 of the Evidence Act provides that if no attesting witness can be found, it must be proved that
the attestation of at least one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting
of that person. Thus, Section 69 of the Evidence Act requires proof of (1) the signature of atleast one witness and (2) the signature of the person
executing the document. It is not necessary, however, for the purpose of Section 69 of the Evidence Act that the same witness must prove the
signature of the attesting witness and also the signature of the executant. The two requirements can be satisfied by two independent witnesses.
8. The law relating to proof of handwriting by a person acquainted with the same has been succinctly stated in Field''s Law of Evidence, 11th
Edition, Volume III, pages 2517 to 2519. It is worthy of reproduction as under:
12. Person acquainted with handwriting : Considering the manner in which Section 47 of the Evidence Act is framed it has been held by the courts
generally that it is enough for a witness to say in examination-in-chief that he is acquainted with the handwriting, and that if it is desired to challenge
that statement of his he has to be cross-examined on that statement to show that he could not be acquainted with the handwriting in the
circumstances of any particular case.
The English law on the point is thus summarized by Taylor on Evidence Act (Vol. 2, Ed. 12, para. 1863, p.1151); ""The witness need not slate in
the first instance how he knows the handwriting, since it is the duty of the opposite party to explore on cross-examination the source of his
knowledge, if he be dissatisfied with the testimony as it stands.
The Indian Law of Evidence is based on the English law, and there is nothing in Section 47 which goes against this principle which has been
accepted by the English courts. Following this principle, the Indian High Courts have also taken the same view and it will be useful to refer to a few
cases in support. Shankarrao Gangadhar v. Ramji Harjivan ILR 28 Bom. 58 : 5 Bom. L.R. 663, Mahanth Jagdish Das and Others Vs. Emperor, ,
see also Pusaram v. Manmal AIR 1955 Raj. 186, see also Shankerappa Vs. Sushilabai, .
In In re. Basrur Venkata Row, 141. C. 418 (Mad) : 36 Mad. 159, an observation was made while dealing with a criminal case that a bald
statement by a witness that certain documents were not in the handwriting of the accused was not legal evidence of any knowledge of the
accused''s handwriting, even when he says that he had seen the accused write document and the accused had written documents for him. Without
saying how long age they were written, his evidence is of the weakest kind. In Pusaram v. Manmal AIR 1955 Raj. 186, Wanchoo, C.J., while
speaking for the Bench said: ""These observations, in our opinion, were about the weight of the evidence and not as to whether it was the duty of
the counsel examining the witness to question him about his source of knowledge. In that case, the source of knowledge of the witness was
undoubted, and the question was only whether the evidence was sufficient to prove the handwriting.
In the case of Mt. Jasoda Kuar Vs. Janak Missir and Others, , there is an observation that in order to prove the handwriting or signature of
another person one must show that he is acquainted with the handwriting or signature of that person. This observation has been taken to mean that
it is for the counsel putting in the witness to bring out the circumstances, though the learned Judge has not said this in so many words.
This case is no authority for the view that it is for the counsel producing the witness to bring out the circumstances in which the witness became
acquainted with the handwriting. It is enough if a witness states in examination-in-chief that he is acquainted with the handwriting, and it is then for
the cross-examining counsel to bring out the circumstances challenging that statement, and discredit the witness. Pusaram v. Manmal AIR 1955
Raj. 186.
13. Weight to be attached to the evidence of lay witnesses: - Where direct evidence of one who was present when the document was written is
not available the familiarity with the handwriting in question may be slight, an opinion based on mere inference is insufficient.
Where the evidence on a case is the result of mental comparison, such evidence according to recognised authority is of an inconclusive character.
It is laid down in Halsbury''s Laws of England (Vol. 13 at p. 606, para 673, as follows : ""Whilst evidence of opinion or belief is admitted for the
purpose of proving handwriting, where direct evidence of one who was present when the document was written is not available, an opinion based
on mere inference is insufficient.
Where a person, who was acquainted with the handwriting of a person, testified on oath to the fact that the disputed signature was the genuine
signature of the person concerned and the expert witness who was called gave his contrary opinion, it was held that the witness''s statement was
more valuable and more worthy of credence than that of the expert witness. u/s 47 of the Evidence Act, the evidence of persons acquainted with
the handwriting of the person by whom a particular document is supposed to be written or signed is relevant and admissible. The evidence of
person acquainted with the handwriting of the executant of a document is relevant and admissible.
But in Rajmal Vs. Islam Mahomed, however, the witness who had been produced to identify the handwriting of the executant did not express his
opinion as if he was a person acquainted with the handwriting of the executant, but attempted to play the role of an expert, which he was not. The
second person also did not express any opinion as if by a person acquainted with the handwriting of the executant, but attempted to play the role
of an expert. Held that the evidence of such witnesses must be rejected.
9. In Raja Venkataramayya v. Kamisetti Ghattayya 53 M.L.J. 216, Waller, J. held that once the handwriting of the attestors is proved, there is a
presumption in the absence of rebutting evidence that they actually witnessed the execution of the deed. The learned Judge relied on the judgment
in Uttam Singh v. Hnkam Singh ILR 39 All. 112.
10. A detailed discussion of the law is found in Ponnuswami Goundan and Another Vs. Kalyanasundara Ayyar and Others, . Anantakrishna
Ayyar, J. has referred to the relevant text books on the law of Evidence besides the decisions of English and Indian Courts. Ultimately, he posed
the question as to whether proof of the signature of the attestors will in law be enough to prove execution against the defendant. He answered the
question in the following words:
Thus the better view in America would seem to be that when proof of the signatures of the attestors is given, it seems to be taken that they attested
in the usual course of business and after execution by the executant, and after the identity of the executant is established it is open to the courts, if
they think fit to do so in the circumstances, to hold the document to be proved to have been executed by the executant. There is no rule of law
which prevents them from doing so, if from the circumstances of the case, the courts are inclined to do so. Whether in any particular case the
courts should do so or not would depend upon the nature of the circumstances in each case. While there is the possibility of the attestors colluding
together and putting their signature to a forged document, especially where the executant is a marksman and thus committing fraud on courts, there
is the other possibility of a genuine document executed by a marksman and properly attested being found to be impossible to be proved when the
attestors are dead. To avoid such extreme cases on both sides, courts have to be guided by all the circumstances of the particular cases before
them. All that I am now concerned to point out is, that there appears to be no rule of law which prevents the courts from holding the execution of a
document to be proved when the signatures of the attesting witnesses had been proved to their satisfaction, having regard to all the circumstances
of the case.
In Joshua Hands v. Herbert James, 2 Comyns. 531, it is stated:
In case the witness be dead, the proof must be circumstantial, and here are circumstances: (1) three witnesses have set their names, and it must be
intended that they did it regularly: (2) one witness was an attorney of good character, and may be presumed to understand what ought to be done,
rather than the contrary...It being a matter of fact, was proper to be left to them (jury).
In Harris v. Knight (1890)15 P.D. 170, Law Reports (by two Judges to one, a profitable case for study) Lopes L.J., said:
The inference to be drawn in cases of this kind depends upon a number of circumstances peculiar to the cases in which they arise, and the
presumption omina rite esse acta applies with more or less force according to the circumstances of each case : see p.184 of the Report.
The English cases support the view taken by the lower courts in the present case. As I found in the American text books a full discussion of the
question raised before me and as they furnished answers to the arguments raised before me, I thought it convenient to refer to the same. I am,
therefore, of opinion that the lower courts were entitled to hold in this case, if they so chose, that Ex.M. was executed by the defendant.
11. The judgment was affirmed on appeal by a Division Bench in Ponnuswami Goundan and Anr. v. Kalyanasundara Ayyar and Ors. 66 M.L.J.
712 : ILR 57 Mad. 662 : 149 Ind.Cas. 267 : AIR 1934 Mad. 365. The Bench said,
He states that the signature of one of the attesting witnesses is his signature. What follows from that? It follows that it is proved that that attesting
witness attested the document. What follows from that? A passage from Mr. Starkie in his Law of Evidence, Edn. 4, p. 519, is set out in the
judgment of our learned brother as follows:
The signature of the attesting witness when proved is evidence of everything upon the face of the instrument, since it is to be presumed that the
witness would not have subscribed his name in attestation of that which did not take place.
Therefore the signature of the attesting witness having been proved is evidence of everything on the face of the document and that he saw the
executant make his mark. The argument put forward before us by the appellants directly gives the go-by to this very obvious inference which in the
English law arises and I see no reason whatever, for excluding that inference from the Indian law of evidence. It gives the go-by entirely to the
provision of the Evidence Act which permits secondary evidence to be given in the absence of witnesses who are either dead or cannot be brought
to court. Section 67, Evidence Act requires nothing more than proof of the handwriting or signature of the writer of the document or its executant.
The section does not specify or limit the kind of evidence required It clearly only requires proof by admissible evidence.
12. A similar view was taken by a Division Bench of the Andhra Pradesh High Court in Indukuri Venkatarama Raju and Ors. v. Totakura Narasa
Raju alias Chittiraju (1966)2 A.W.R. 134. The Bench has relied on the rulings in Raja Venkataramayya v. Kamisetti Ghatlayya 53 M.L.J. 216 and
Ponnuswami Goundan and Another Vs. Kalyanasundara Ayyar and Others, .
13. In Shankerappa Vs. Sushilabai, , Venkatachaliah, J. observed that it is not necessary for a non-expert testifying u/s 47 of the Evidence Act to
state in chief-examination as to the mode in which knowledge of handwriting was acquired by him and it was for the cross-examining counsel to
challenge his statement, if it was to be disputed. In the present case, the petitioner''s counsel did not choose to cross-examine P.W.2 in detail but
rested content with a suggestion that he did not see the attestors attesting any other document.
14. In Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, , the effect of registration of a will has been considered.
It is pointed out that if the evidence as to registration reveals on a close examination that the registration was made in such a manner that it was
brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted
its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. It is also observed that the mere
fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a will, though it would be an
important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the
will after knowing that it was a will the execution of which he was admitting. In the present case, the testatrix is highly educated woman with
sufficient worldly experience besides being a retired Government official. The evidence of the Sub Registrar (P.W. 1), which has been accepted by
the court below, shows that she was aware of the nature of the document and she admitted execution thereof before him.
15. A Division Bench of this Court in Irudayammal and Others Vs. Salayath Mary, , held that if no other evidence is available, the certificate of
registration is prima facie evidence of its execution and the certificate of the registering officer u/s 60 of the Registration Act is relevant for proving
execution. The following passage in the judgment is worth reproduction:
The first defendant has, therefore, proved the Will by other acceptable, satisfactory evidence, supplemented by such presumptions as would arise
under the provisions of the Registration Act and Section 114 of the Evidence Act on the facts of this case. There is a general presumption about
the execution of the Will arising u/s 60 of the Indian Registration Act (vide : Mull''s Indian Registration Act, Seventh Edition, page 256). It is true
that registration, by itself, in all cases, is not proof of execution, but if no other evidence is available, the certificate of registration is prima facie
evidence of its execution and the certificate of the registration officer u/s 60 of the Registration Act is relevant for proving execution. (See
discussion in Sarkar''s Evidence, Latest (12th) Edition, Page 640). As observed by the Privy Council in Mohammed Ihtishan Ali v. Jamna Prasad,
1922 20 M.L.J. 961 : AIR 1922 P.C. 56 : 48 LA. 355 : 641. C. 299, registration is a solemn act and if no other evidence is available, the court
can presume that the Registrar performed his duty of satisfying himself that the document presented to him for registration was duly executed by the
executant and the executant was duly and properly identified before him. The same view has been taken in AIR 1943 83 (Privy Council) in which,
after referring to the earlier decision of the Privy Council in Mohammed Ihtishan Ali v. Jamna Prasad 20 M.L.J. 961 : AIR 1922 P.C. 56 : 48 LA.
355 : 64 Ind.Cas. 299, Sir George Rankin observed that the evidence of due registration is itself some evidence of execution as against the other
side. There is a full discussion on this question as to the presumption arising from the fact of due registration, coupled with the presumption arising
u/s 114 of the Indian Evidence Act, in a Bench decision of the Mysore High Court in Hutchegowda v. Chennigegowda A.I.R 1953 Mys 49, in
which it was held that the evidence that a document was duly registered is some evidence of its execution by the person by whom it purports to
have been executed. There is a full discussion of the relevant case law including the decision of the Privy Council in Mohammed Ihtishan Ali v.
Jamna Prasad 20 M.L.J. 961 : AIR 1922 P.C. 56 : 48 I.A. 355 : 64 Ind.Cas. 299, aforesaid. In Revanna v. Dr. A.V. Ranga Rao AIR 1952 Mys
119, it was observed that in cases where it is impossible for any person to prove execution of a document on account of the death of all the
persons concerned, the best and the only possible evidence that may be available is that of a certified copy of the registered document and that in
such cases, a presumption would arise u/s 6() of the Registration Act along with Section 114 of the Evidence Act (see also Kashibai Martand Vs.
Vinayak Ganesh and Others, . It will be seen that in the ultimate analysis, the problem in each case is, ''has the best evidence been adduced on the
facts of each case''; in the instant case, we have not the slightest hesitation in holding that this essential test for arriving at the truth has been amply
satisfied.
The present case stands on a better footing, as in addition to the certificate of registration, the Officer who registered the document has himself
given evidence in the case.
16. In Surendra Pal and Others Vs. Dr. (Mrs.) Saraswati Arora and Another, , it is held that the burden of the propounder of a will is discharged
when he establishes that the will was signed by the testator in a sound disposing state of mind and he put his signature to the testament on his own
free will in th presence of two witnesses, who attested it in his presence and in the presence of each other. The court observed,
But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful,
the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances,
the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the will are
not the result of the testator''s free will and mind.
In the present case, not even one of the circumstances catalogued by the Apex Court in the above passage is pleaded or proved. Hence, the
presumptions available in law can be drawn and the court below has rightly accepted the evidence on record as sufficient proof of the will in
question.
17. Learned Counsel for the petitioner has argued at length that an admission made by the testatrix before the Sub Registrar as to the execution of
the document cannot be treated as an admission of execution within the meaning of Section 70 of the Evidence Act. He relied on the rulings in
E.Su. Na. Sheikh Davood Rowther and Others Vs. N.R.M.N. Ramanathan Chettiar and Others, , Timmayya Dundappa v. Channava Appaya
AIR 1948 Bom. 322, and Valliammal Vs. Rakkia Gounder and Others, . It is argued that for the purposes of Section 70 of the Evidence Act,
there must be an admission in the course of the proceedings in which the document is sought to be proved and that mere admission of signature in
the document will not tantamount to admission of due execution. According to him, in the case of a will, it must be proved that the requirements of
Section 63 of the Indian Succession Act are satisfied and if any admission falls short of proving the same, it cannot be treated as an admission. He
has also drawn my attention to the judgment in Blake v. Blake 7 L.R. Probate Division 102. The learned Judges held in that case that though the
testatrix admitted her executing the will, the evidence was not sufficient to prove that it was executed in accordance with the requirements of law.
He has also referred to the rulings in Lachman Singh and Others Vs. Surendra Bahadur Singha and Others , and H. Venkata Sastri and Sons and
Others Vs. Rahilna Bi and Others, , and contended that the Sub Registrar cannot be treated as an attiesting witness. It is not necessary for me to
consider either the argument relating to Section 70 of the Evidence Act or the argument that the Sub Registrar is not an attesting witness, as learned
Counsel for the respondent has not raised such contentions. Hence, I do not propose to refer to the aforesaid rulings in detail.
18. Learned Counsel had placed reliance on the judgment of the Privy Council in Shamu Pattar v. Abdul Kadir Ravuthan 23 M.L.J. 321 : 16
Ind.Cas. 250 : 39 I.A. 218 : 1912 M.W.N. 935, and the judgment of a Division Bench of this Court in Vadla Nagiah v. Valuru Divakara Mudaliar
1917 M.W.N. 583. In both the cases it is held that the admission of execution will not amount to admission of due attestation. Similarly in Rajani
Kanta Barui and Others Vs. Bonbehari Sarkar, , a Division Bench of the Calcutta High Court held that the admission of signature in a document
cannot dispense with the proof of attestation. None of the above ruling will have any bearing in the present case. I have already referred in detail to
the evidence on record and the relevant case law on the subject. The attestation of the will by the two attestors, whose signatures are found in the
will, has been proved and in any event, the evidence on record is legal evidence which has been accepted by the court below. The law on the
subject is quite clear as pointed out by the rulings referred to already. Hence, it has to be held in this case that the due execution of the will and the
attestation thereof have been proved.
19. Learned Counsel has placed reliance on the judgment in Sadachi Animal v. Rajathi Animal AIR 1940 Mad. 315 : 1939 M.W.N. 651, and
contends that just because the testatrix presented the will to the Registrar, who does not even appear to have put any questions to her, it cannot be
held that she had the testamentary capacity to execute the will. He relies on the following passage in the judgment:
The mere fact that the testator was able to answer a few leading questions does not suffice to show that he was really capable of knowing the
nature of the dispositions made in the will that was being registered. It may be that the will, except the schedules, was read to the testator by the
Sub-registrar and it may be that the Sub-registrar was of opinion that the testator understood the contents of the will, but the latter is only a
question of opinion, and there is no guarantee that the Sub-registrar''s opinion that the testator understood the contents of the will is correct, having
regard to his extremely weak physical condition at the time. There can be no doubt from the evidence of the Sub-Registrar himself, apart from the
other evidence in the case, that at the time of the registration the testator was so weak as, to require assistance in order to sit on his cot and also in
lying down after the signatures were affixed in token of registration. The testator died within about 40 hours after the registration and he had been
suffering from a serious illness for at least two months. In these circumstances, it is impossible to regard the registration as being equivalent to proof
of capacity for making a will.
The above observations must be understood in the light of the facts of the case. Even the passage extracted above makes a reference to the
peculiar circumstances of the case. It is also seen from the report that there was no satisfactory evidence regarding the actual execution of the will.
Out of six attestors, only one was examined and the writer was not examined. The evidence of the single attestor was found unreliable. On the
other hand, two attestors were examined on the side of the person who challenged the will and their evidence proved that their signatures were
obtained by some pressure or inducement and they were not really present when the testator signed the will. It was in those circumstances the
learned Judge held that the proof of registration was not sufficient proof of the due execution and attestation of will.
20. The case in Doraiswami Vs. Rathnammal and Others, , relied on by learned Counsel for the petitioner is similar. The only attesting witness who
was alive, gave evidence denying his attestation and execution of the will. Taking that factor along with various other circumstances including the
continued illness of the concerned person made the court doubt the evidence that the said person appeared before the Sub-Registrar and admitted
execution of the will. In fact, it was observed that it was possible that someone else impersonated her before the Sub-Registrar. Hence, that ruling
will not help the petitioner herein.
21. Learned Counsel submits that the Explanation to Section 47 of the Evidence Act is not satisfied in the present case by P.W.2. He relies on the
observations of the Supreme Court in Sri Baru Ram Vs. Prasanni and Others, , that the requirements of Section 47 should be satisfied for
considering the proof of a document u/s 67 of the Evidence Act. The relevant passage is as follows:
Section 67 of the Indian Evidence Act (1 of 1872) provides inter alia that if a document is alleged to be signed by any person the signature must be
proved to be in his handwriting. Sections 45 and 47 of the said Act prescribed the method in which such signature can be proved. u/s 45, the
opinion of the handwriting experts is relevant while u/s 47 the opinion of any person acquainted with the handwriting of the person who is alleged to
have signed the document is admissible. The explanation to the section explains when a person can be said to be acquainted with the handwriting
of another person. Thus, there can be no doubt as to the manner in which the alleged signature of the appellant could and should have been
proved; but even assuming that the signature of the appellant can be legally held to be proved on circumstantial evidence the principle which
governs the appreciation of such circumstantial evidence in cases of this kind cannot be ignored. It is only if the court is satisfied that the
circumstantial evidence irresistibly leads to the inference that the appellant must have signed the form that the court can legitimately reach such a
conclusion.
The passage itself makes reference to the circumstantial evidence and points out the need for the court being satisfied that the circumstantial
evidence irresistibly leads to a particular inference. In the present case, the circumstantial evidence referred to already is sufficient to lead to an
inference that the will was duly executed and attested.
22. Learned Counsel has also drawn my attention to the judgment of Rajasthan High Court in Dhani Bai and Others Vs. Neem Kanwar and
Others, The court held in that case that much reliance could not be placed on the evidence of a non-expert witness about the identification of the
executant''s signature as he had only seen the executant writing only once or twice. In that case, the signature in question was alleged to have been
subscribed before the witness was born. The observation made by the court cannot be taken out of the context and applied to the present case.
No attempt was made in the cross-examination of P.W.2 to elicit from him that he had no occasion at all to see the handwriting or signatures of the
attesting witnesses who were also working as advocates'' clerks along with him in the same court.
23. Learned Counsel relies on the following passage in the judgment of the Supreme Court in Rahim Khan Vs. Khurshid Ahmed and Others, :
There is also oral evidence identifying the signature of the returned candidate on Exs.P-3 and P.W.11/1, particularly in the deposition of Habib,
P.W.23. He has not spoken to his familiarity with the handwriting of the appellant. Opinion evidence is hearsay and becomes relevant only if the
condition laid down in Section 47 of the Evidence Act is first proved. There is some conflict of judicial opinion on this matter, but we need not
resolve it here, because, although there is close resemblance between the signature of Rahim Khan on admitted documents and that in Exs.P-3 and
P.W.11/1, we do not wish to hazard a conclusion based on dubious evidence or lay comparison of signature by courts. In these circumstances, we
have to search for other evidence, if any, in proof of circulation of the printed hand-bills by the returned candidate, or with his consent.
It is apparent that the passage has no relevance whatever to the present case.
24. There is no substance in the contentions urged by the revision petitioner. I find that the court below has not committed any error whatever in
accepting the evidence of P.Ws.1 and 2 and holding that the will propounded by the respondent is the last will and testament of the deceased
plaintiff and the respondent is a person entitled to come on record as her legal representative.
25. The civil revision petition suffers a dismissal. The parties will bear their respective costs.
