Kannamaml vs Chinnaponnammal

S.S. Subramani, J.—Defendant in O.S.No. 282 of 1981, on the file of District Munsif''s Court, Ranipet is a appellant before this Court.

Respondent herein filed the above suit for partition claiming one half share in the plaint items. Admittedly, the properly originally belonged to late

Murugan, who died in January, 1980. Plaintiff, i.e., the respondent herein, is his second wife, and the appellant is his daughter through first wife. It

is admitted that the first wife is dead. It is the case of the respondent that Murugan died intestate, and herself and the defendant are the only legal

heirs entitled to one half each. It is said that her husband never executed any will or settlement deed, and therefore, she is entitled to one half right

in the property. Before the institution of the suit, a notice was issued, calling upon the defendant to effect a partition. It was in reply to that notice,

the appellant contended that her father, i.e., the acquirer has executed a will and settlement deed. This according to the plaintiff, is not correct, and

at any rate, it is further said that the will even if any, is created and is invalid.

In the written statement filed by the appellant, she admitted the relationship. But she said that her deceased father has executed Ex.B-2 will and

also a settlement deed whereby properties have been bequeathed to her, subject to certain rights of the plaintiff over some of the items. She,

therefore, said that the claim for partition is not maintainable.

The trial Court marked Exx.A-1 and A-2 on the side of the plaintiff, respondent herein, who got herself examined as P.W. 1. On the side of the

defendant, appellant herein, Exx.B-1 to B-3 were marked, and D.Ws.l to 7 were examined, D.W.4 is none else than the appellant.

Trial Court, after evaluating the evidence, came to the conclusion that Exx.B-2 and B-3 are valid and, therefore, the plaintiff is not entitled to any

right except that provided in the document. The trial Court was of the view that the plaintiff is not entitled to get partition, and the deceased died

testate.

Aggrieved by the judgment, the respondent herein filed A.S.No. 115 of 1985, on the file of the District Court, North Arcot at Vellore. The

lower appellate Court re-appreciated the evidence and came to the conclusion that both Ex.B-2 and B-3 are invalid, and the execution of the same

is not proved. A preliminary decree as prayed for by the respondent was passed. It is against the said judgment, the defendant has preferred this

second appeal.

At the time of admission of the second appeal, the following substantial question of law was formulated for consideration:-

Whether the lower appellate Court is right in law in holding Ex.B-1 and B-2 are not true and acted upon by reversing the findings of the trial

Court?

As stated from the facts, the parties admit the relationship with the deceased, and if Murugan died intestate, it is not disputed that each will be

entitled to one half share over the plaint items. The only ground on which the appellant disputes the claim of the respect is that her father died

testate and that he has also executed a settlement deed and, therefore, the plaintiff is not entitled to partition. Being an exception to the ordinary law

of succession, it is for the appellant to prove that the deceased has executed such documents, which dis-entitle the plaintiff from claiming any share.

It is not disputed that both the documents on which the plaintiff places reliance, are documents which require attestation. ''Attestation'' has been

defined in Section 63(c) of the Indian Succession Act and also in Section 3 of the Transfer of Property Act. Section 68 of the Evidence Act

provides as to how a document which requires attestation, has to be proved.

Section 63(c) of the Indian Succession Act reads thus:-

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 been same other

person sign the will, in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of his

signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall

not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."" Section 68 of

the Evidence Act says 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, if there be an attesting witness alive, and subject to the process of the Court and capable of

giving evidence, A Proviso is also added to the said section which says that, ''it shall not be necessary to call an attesting witness in proof of the

execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908,

unless its execution by the person by whom it purports to have been executed is specifically denied.'' In this case, the plaintiff was informed by way

of reply notice that the deceased has executed Ex.B-2 and B-3 documents and, therefore, she has specifically denied the same by stating in the

plaint that the deceased has not executed any will or settlement, even though other grounds are also taken to invalidate any such document. So,

once it is specifically denied, there is a bounden duty on the part of the appellant to prove the execution of both the will and the settlement, as

provided u/s 68 of the Evidence Act.

I will first consider how far Ex.B-2 will alleged to have been executed by the deceased has been proved. D.Ws.2 and 3 are the two witnesses

who speak about the execution of Ex.B-2 will. D.W.2, in his chief-examination said that he knows both the plaintiff and the defendant, and in

Ex.B-2, he has signed. It was written by one Janakiraman, and the document was executed in favour of Murugan''s daughter and son-in-law. The

wife is also provided therein, and the will was written at Kaverippakkam. Along with him, one Ragothaman was also there. (Ragothaman is

D.W.3) At the time when Ex.B-1 will was executed, Murugan was hale and healthy, and he was not compelled to execute any document. He says

that he was present at the time when the same was executed, that Murugan affixed his finger print, and at that time, he was mentally alert.

D.W.3, in his examination, said that his father''s name is Varadhan and he is acquainted with the defendant. He also said that the defendant is

the daughter of Murugan, and the plaintiff is his widow. In Ex.B-2, he has affixed his signature. It is said that at the instance of Murugan, the will

was executed. At that time, Murugan was mentally alert, and he had no illness, and he was also aware of the consequences of his actions. From

the very beginning of the execution, he was present, and thereafter Murugan affixed his thumb-impression and that he saw the same. He also

denied the suggestion that he has colluded with the defendant in creating the will. This is all that have been spoken to by D.Ws.2 and 3. I have

already extracted Section 63(c) of the Indian Succession Act. One of the legal requirements is, that each of the witnesses shall sign in the presence

of the testator. Even if he testator signed in their presence, the attestation is not complete unless and until the attestors also sign in the presence of

the testator and the testator has seen the attestors signing the document. This aspect of the matter is not spoken to by D.Ws.2 and 3. In the recent

decision of the Supreme Court reported in Kashibai and Another Vs. Parwatibai and Others, their Lordships said that ''Section 68 of the Evidence

Act, shows that ''attestation'' and ''execution'' are two different acts one following the other. There can be no valid execution of a document which

under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of

no avail. Section 63 of the Succession Act also lays down certain rules with regard to the execution of unprivileged wills. The word ''attested'' has

been defined in Section 3 of the Transfer of Property Act.'' In paragraphs 10 and 11 of the said decision, their Lordships of the Supreme Court

have held thus:-

This brings us to the question of the will alleged to have been executed by deceased Lachiram in favour of his grandson Purshottam, Defendant 3.

Section 68 of Evidence Act relates to the proof of execution of document required by law to be attested. Admittedly, a deed of Will is one of such

documents which necessarily require by law to be attested. Section 68 of the Evidence Act contemplates 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, if there be

an attesting witness alive, and subject to the process of the court and capable of giving evidence. A reading of Section 68 will show that

''attestation'' and ''execution'' are two different acts one following the other. There can be no valid execution of a document which under the law is

required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail. Section

63 of the Indian Succession Act, 1925 also lays down certain rules with regard to the execution of unprivileged Wills. Clause (c) of Section 63

provides that the will shall be attested by two or more witnesses, each one of whom has seen the testator sign or affix his mark to be Will or has

seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal

acknowledgement of his signature or mark or the signature of such other person; and each of the witnesses should 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.

Here we may also take note of the definition of the expression ''attested'' as contained in Section 3 of the Transfer of Property Act which reads as

under: -

''attested'', in relation to an instrument means and shall be deemed always to have meant attested by two or more witnesses each of whom has

seen the execution sign or affix his Mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction

of the executant, or has received from the executant, a personal acknowledgment of his signature or mark, or of the signature of such other person

and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses

shall have been present at the same time, and no particular form of attestation shall be necessary.

Having regard to the aforementioned definition an attesting witnesses is a person who is the presence of an executant of a document puts his

signature or mark after he has either seen the executant himself or some one on direction of the executant has put his signature or affixed his mark

on the document so required to be attested or after he has received from the executant a personal acknowledgement of his signature or mark or

the signature or mark of such other person...

The legal requirement of attestation is not proved by D.Ws.2 and 3. The omission of the witnesses to speak about the due attestation cannot

be cured on the basis of assumptions. Even if the witnesses do not speak in terms of the Section, atleast from probabilities, the Court must be in a

position to infer that there has been due attestation. Even those circumstances have not been made out in this case. When there is no evidence of

D.Ws.2 and 3 that they subscribed their signature in the presence of the testator or received his acknowledgement, it cannot be said that Ex.B-2

Will be properly proved. That finding of the lower appellate Court is, therefore, correct.

The other documents on which reliance is placed by the appellant are, Ex.B-1 and B-3, D.Ws.5 and 6 are witnesses who speak about these

documents. D.W.5 is only an identifying witness and D.W.6 is an attestor. D.W.5 says that one of the attestors was the brother of the executant

Murugan and he is dead. Even though the other attesting witness is not available for giving evidence, D.W.6, when he speaks about these

documents, does not speak about the presence of the other attestor. In his evidence, he only said that he is acquainted with Murugan and that he

has executed a document in favour of his daughter and son-in-law and that is the settlement. In Ex.B-1, he has also signed as a witness and at that

time Murugan had the mental capacity to execute the document. He was not suffering from any ailment. He also said that he was present when

Murugan executed the document. In Ex.B-3 also, he has signed as a witness, and he also saw the executant signing the same. When D.W.6

speaks about Ex.B-1 and B-3, he does not say anything about the presence of the other attestor. Section 68 of the Evidence Act says that atleast

one attesting witness should be called to prove the execution. D.W.5 says that he identified the executant before the Sub Registrar and he was

called by the deceased, to be an indentifying witness. The document was executed in favour of his daughter and the mental faculty of the executant

was normal and the document was not executed by force or coercion.

In Roda Framroze Mody Vs. Kanta Varjivandas Saraiya, a Division Bench of the Bombay High Court considered as to how the attestation

has to be proved, and even in case only one attesting witness is examined, he must be in a position to speak about the entire execution and

attestation of the document. That means, he must be in a position to speak not only about his attestation to the document, but also about the

attestation to the document by the other witness. In the said decision, it was held thus:-

Section 68, Evidence Act, does not say that a document required to be attested by two witnesses shall be proved by the evidence of one of them.

All that the Section provides is that such a document shall not be accepted in evidence unless the evidence of atleast one of the attesting witnesses

is called. The words ''at least'' pre-suppose that more evidence may be required, and it can only be by reference to the circumstances of each case

that the quantum of evidence necessary to discharge the onus of proof can be measured. Section 68, Evidence Act, lays down only the mode of

proving and it does not define what is required to be proved u/s 63(c), Succession Act Section 63(c), Succession Act, requires that the will should

be attested by two or more witnesses, each of whom had either seen the testator sign or affix his mark, or had received from the testator a

personal acknowledgment of his signature or mark on the will. The combined effect of Section 63(c), Succession Act, and Section 68, Evidence

Act, is that what the person propounding the will has got to prove is that the will was duly and validly executed and that must be done by not

simply proving that the signature on the will was that of the testator but that the attestations were also properly made as required by Section 63(c).

No doubt Section 68, Evidence Act, says that it is not necessary to examine both or all the attesting witnesses, but it does not follow therefrom that

if one attesting witness only proves that the testator had acknowledged his signature to him it is not necessary that the acknowledgment by the

testator before the other attesting witness need be proved. All that it means is that if two attesting witnesses had signed in each other''s presence, it

is not necessary to examine both of them to prove that they had received the acknowledgement from the testator. But if, as allowed u/s 63, the

attestations to the testator''s signature were not made at the same time, it is necessary to prove that both the persons, who put down their attesting

signatures on different occasions, had done so on the acknowledgement of the testator. Accordingly where a will duly signed by the testator was

attested by the witnesses not in the presence of each other but at different times on the acknowledgement by the testator of his own signature the

evidence of one of the attesting witnesses is not sufficient to prove execution of the will.

The said decision was followed by our High Court in the Bench decision reported in A. Rangaswami Pillai Vs. A. Subramania Pillai and Others, of

the judgment, their Lordships said thus:-

...Under Section 63(c) of the Indian Succession Act, a Will shall be attested by two or more witnesses, each of whom must have seen the testator

sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received

from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign

the will in the presence of the testator. Therefore, proof of due execution requires that either one or more of the attesting witnesses should prove

the execution by the testator and the attestation by each of them. This is also the ratio of the judgment of a Division Bench of the Bombay High

Court in Roda Framroze Mody Vs. Kanta Varjivandas Saraiya,

The said principle was reiterated in the decision reported in Sarojini Ammal and Another Vs. Anbazhagan and Others, wherein it was held thus:-

Under Section 63(c) of the Indian Succession Act, to amount to due attestation of the will, (1) each of the attesting witnesses should have seen the

testator signing the will or must have received from the testator a personal acknowledgment of his signature; (2) each of the witnesses should have

signed the will in the presence of the testator, and (3) if only one attesting witness is examined, there must be evidence to show that the other

attesting witnesses was also present at the time when the executant signed the document or received from the executant a personal

acknowledgment of his signature or mark, valid attestation of the will can be said to have been proved not necessarily by calling both the attestors

but even by examining one attestors provided his evidence shows that the other attesting witness was also present at the time when the executant

signed the document or put his mark.

On going through the evidence, the lower appellate Court came to the conclusion that the execution of Ex.B-1 and B- 3 was not proved in

accordance with law.

The trial Court did not discuss the evidence and simply said that the witnesses did not speak about the month or year of execution. That is not

a reason for discarding their evidence. Without appreciating the evidence, the trial Court upheld the validity of Ex.B-2 and B-3. That approach of

the trial Court was found to be incorrect by the lower appellate Court, which discussed the entire evidence in detail.

u/s 100 of the Code of Civil Procedure, this Court is expected to re-appreciate the evidence. This Court is only concerned with the question

whether the finding of the lower appellate Court is based on evidence, and whether the same has been arrived in accordance with law.

I do not find that the findings of the lower appellate Court are in any way incorrect or any interference is called for by this Court.

A case of adverse possession and limitation was also pleaded. There cannot be any question of adverse possession or limitation, unless a plea

of ouster is raised and successfully proved. The parties are co-owners in the absence of Ex.B-1 to B-3. It is admitted that even now both the

parties are residing in the same house and the dispute arose between them only after 1980, i.e., after the death of Murugan. Till then, the appellant

did not have any animus to oust the plaintiff. Only when a demand for partition was made, she disputed the claim of the respondent. The plea of

ouster was also rightly found against the appellant.

I do not find that the lower appellate Court has misinterpreted Ex.B-1 to B-3. The substantial question of law raised in the second appeal is

found against the appellant.

In the result, confirming the judgment of the lower appellate Court, I dismiss this second appeal with costs.