Smt. Rama Mishra vs Jitendra Kumar and Others

N.K. Agrawal, J.—Heard on admission. This is plaintiffs Second Appeal u/s 100 of CPC against the judgment and decree dated 14.03.2011, passed by the District Judge, Bilaspur, in Civil Appeal No. 3-A/10 affirming judgment and decree dated 31.10.2009, passed by the 2nd Civil Judge, Class-I, Bilaspur, in Civil Suit No. 97-A/05.

Brief facts, necessary for disposal of this case are as under:

(i) appellant/plaintiff filed a suit for declaration of title inter-alia on the ground pursuant to registered Will-deed dated 22.12.1978 (Ex P/1) executed by late Parwati Bai in her favour she became the owner of the suit property.

(ii) Respondent No. 1 to 3 by filing written statement, denied the execution of Will-deed in plaintiffs favour.

(iii) The trial court framed issues, parties led evidence.

(iv) The trial court, finding inter alia, plaintiff failed to prove due execution of Will-deed in terms of Section 68 of the Evidence Act, 1872 (for short, ''the Act, 1872''), dismissed the suit.

(v) Plaintiff preferred first appeal there-against. The first appellate court, after re-appreciating the entire evidence and material placed on record, affirmed the judgment and decree passed by the trial court and dismissed the appeal.

Hence this Second Appeal.

Shri Rajeev Bharat, learned counsel appearing for the appellant would submit: in view of admission of respondent No. 5/Chandrabhaga Tripathi, who is also an attesting witness, in her written statement para 3 regarding execution of Will-deed by late Parwati Bai in plaintiffs favour, the requirement of Section 68 of the Act, 1872, stands satisfied and the court below have erred in holding Will-deed has not been proved in the manner, as required by Section 58 of the Act, 1872.

I have heard learned counsel appearing for the appellant and perused the judgment and decree impugned including records of both the courts below.

Both the courts below have held respondent No. 5/Chandrabhaga Tripathi had not admitted due execution of Will-deed in plaintiffs favour. A careful reading of written statement filed by respondent No. 5 goes to show she had in-fact specifically denied execution of Will by late Parwati Bai in plaintiffs-favour. What she has-stated is that, treating the alleged Will-deed (Ex. P/1) as deed of partition between her two brothers she had put her signature over Ex. P/1. It is well established principle that a statement to be read as an admission of a party, it must be definite, clear and specific and must specifically refer to and relate point or fact in dispute, otherwise it is not an admission nor can be treated to be the admission, therefore, the contention raised by Shri Bharat, on the face, is devoid of merit.

The propounder has to be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he/she understood the nature and effect of the disposition and put his/her signature to the document of his/her own free Will and the document shall not be used as an evidence until one attesting witness at least has been called for the purpose of proving its execution, This is the mandate of Section 68 of the Evidence Act, 1872, and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.

Here in the instant case, the plaintiff herself did not enter into witness box nor the contesting defendants had admitted execution of Will nor respondent No. 5/attesting witness had admitted due execution of the Will.

The Supreme Court, in the case of Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and Others, has held in para-16: Section 68 of the Act of 1872 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though Will has to be attested at least by two witnesses mandatorily u/s 63(c) of the Act of 1925. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a Will. To put In other words, if one attesting witness can prove execution of the Will in terms of Clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, In his evidence, has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will.

Therefore, learned counsel appearing for the appellant is not correct in his submission that in view of contents of the written statement filed by one of the attesting witness Chandrabhaga Tripathi, requirement of Section 68 of the Act, 1872, stands satisfied. On the contrary, for want of examination of attesting witness the Will cannot be read as evidence in the case in the facts and circumstances of the present case,

While dealing with the scope of Section 100 of C.P.C., the Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., in para 12 held thus:

The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance, in AIR 1928 172 (Privy Council) , the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties.

Therefore, as in the present case, on the face, no substantial question of law arises for determination of this court, the appeal being devoid of merit, is liable to be and is hereby dismissed summarily.