Vilayati Lal and Satpal Chhabra vs Dharmpal and Others

Rajesh Tandon, J.—Heard Sri Ramji Srivastava counsel for the appellants and Sri V.K. Kohli Sr. Advocate assisted by Sri LP. Kohali counsel for the respondents.

Present second appeals have been filed against the judgment and decree dated 17.7.2004 passed by the Additional District Judge, Dehradun, allowing the appeal and setting aside the decree dated 26.11.2001 passed by the Civil Judge, Dehradun in Civil Appeal No. 253 of 2001, Civil Appeal No. 242 of 2001 and Civil Appeal No. 241 of 2001.

The appeal was admitted on the following substantial question of law:

Whether, when the attesting witness was alive and the beneficiary has failed to produce him in the witness box, does it mean that the Will in question remained not proved.

Briefly stated a suit has been filed by Shyam Sunder Chhabra, Ram Kishan Chhabra, Sri Shanker Lal Chhabra and Smt. Prakash Rani for partition and for possession on the basis of Will. The plaint allegations are that the property known as 1 Railway Road, Rishikesh and 61 Tilak Road, Rishikesh were owned by one Smt. Lajwanti. Smt. Lajwanti had four sons namely Khairati Lai, Vilayati lal, Satya Pal and Dharmpal and one daughter namely Smt. Sunita Devi. Sri Khairati Lal expired om 7th April 1992 who had three sons i.e. Sri Shyam Sunder, Sri Ram Kishan, Sri Shanker Lal and widow Smt. Prakash. Smt. Lajwanti expired on 26th September 1992. The sons of Sri Khairati Lal along with their mother Smt. Prakash Rani has filed suit No. 738 of 1993 for partition in respect of property which was left by Smt. Lajwanti who expired on 26th September 1992. Sri Vilayti Lal, Sri Satyapal, Sri Dharmpal, Smt. Sunita Devi and.Sri Pankaj w/o Sri Dharampal were impleaded as prry in the aid suit. After receipt of the summons Sri Dharampal had filed written statement that late Smt. Lajwanti had executed a Will on 23rd January 1991, about one and a half year before her death bequeathing all her property in favour of her sons including his, grandson Sri Pankaj s/o Sri Dharampal, defendant No. 5. So far the daughter Sunita was concerned, it was mentioned that she was married and is well settled.

The plaintiffs in the said suit who are respondents No. 3 to 6 in the present second appeal, had honoured the said Will and the said Will shows that provisions were made for all the sons. Sri Vilayti Lal and Sri Satyapal have set up two Will dated 13.12.1973 and16.12.1976, however in his statement Sri Vilayati Lal has stated that Smt. Lajwanti had executed last Will on 24th December 1976.

The trial Court has framed as many as ten issues. The trial Court has held that Will dated 13.12.1973 and 16.12.1976 are the last Wills and the counter claim of the defendant No. 3 and 4 were decreed declaring that the defendants No. 1 and 2 are the owners of the property in dispute on the basis of the two Will vide judgment and decree dated 26.11.2001. Feeling aggrieved three appeals were preferred i.e. Civil Appeal No. 241 of 2001, 242 of 2001 and 253 of 2001.

The appellate Court has held that as per own case of the defendants Sri Dharampal, Sri Vilayti Lal, Sri Satya Pal and Sri Pankaj, the deceased has left three Will. The last Will according to them is dated 24th December 1976, hence the trial court was not justified in decreeing the counter claim of the defendant. The appellate court has also set aside the findings of the trial Court pertaining to the Will dated 23rd January 1991, which was held as the final Will.

However, in the present case no witness has been examined to prove Will dated 16th December 1976.

So far as the Will dated 13th December 1973 is concerned Sri Nanak Chand (D.W.4) has deposed that he was the attesting witness of the Will dated 13th December 1973 but this witness has completely disowned his signature on the Will or his being an attesting witness of the ill. He has stated that paper No. 71-A was not typed in his presence and he had also not proved the thumb impression of its executants or other witnesses.

So far as the Will dated 23rd January 1991 is concerned, which was relied upon by the lower appellate Court was duly proved. There were two attesting witnesses of the said Will. One is Sri Rajesh Agarwal and another is Vishnu Prasad. To prove this Will P.W. 8 Rajesh Agarwal was examined as DW-8 and he proved the Will. It is a case of the respondent that without examination of one of the attesting witnesses the Will is a waste paper. The Will dated 23rd January 1991 was held as the last Will by the first appellate court and the said Will was proved by one of the attesting witness Sri Rajesh Agarwal (D.W.8). This witness has stated as under:

eS o"kZ 1995&96 ls vkVks QkbusUl dk dke djrk gwW Afnukad 23-1-91 dks /kEkZiky eq>s olh;r dh xokgh ds fy, cqykdj yk;k Fkk A ,d fo".kq izlkn dks Hkh cqykdj yk;s Fks A /keZoky dh ekrk th dk uke yktoUrh FkkA yktoUrh us dgk Fkk fd eq>s viuh olh;r djkuh gS esjs lkFk pyks A eS o fo".kq izlkn /keZiky o yktoUrh ds lkFk py fn;s A yktoUrh ges odhy lkgc ds ikl ysdj x;hA---------------------------------------------------olh;r 109 ,&1 xokg dks fn[kk;h x;h A xokg us dgk blds vfUre Ik`"B ij fotsUnz ukFk jLrksxh ,e0 dke0 ,y0,y0ch0 ,MoksdsV o uksVh fy[kk gS A tks vkneh ftldks dDdM dgrs Fks mlus yktoUrh dh fluk[r fd;k FkkA uksVjh lkgc us olh;r 109&,&1 idj yktoUrh dsk lquk;h Fkh vkSj essjs lkeus olh;r ds gj ist ij yktoUrh us vaxwBs yxok;s FksA olh;r dsk ns[kdj xokg us dgk 109 &1@4 ij esjs nLr[kr gS A

In view of above, the Will dated 23rd January 1991 is the last Will, which is duly proved by the attesting witness Rajesh Agarwal (D.W.8). None of the attesting witnesses of the Will dated 13th December, 1973 and 16th December 1976 which were relied upon by the appellants in the present appeal, have proved the said Will. Thus the trial Court has erred in law by relying Will dated 13th December 1973 and 16th December, 1976.

So far as the substantial question of law is concerned it is to be noted that Will dated 13th December 1973 and Will dated 16th December 1976 were not proved at all. The will is a waste paper unless it is proved by at least one attesting witness.

Apex Court in the case Seth Beni Chand (Since Dead) Now by L.Rs. Vs. Smt. Kamla Kunwar and Others, has observed as under:

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 an attesting witness to prove due execution of the will But this argument overlooks 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 signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document.

Further in the case Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, , the Apex Court has held as under:

To say a will has been duly executed the requirements mentioned in Clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e. (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that 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 that by that mark or signature the document is. intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the will, or must have seen some other person sign the will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the will in the presence of the testator.

It is thus clear that one of the requirements of due execution of a will is its attestation by two or more witnesses, which is mandatory.

The Apex Court in the case Commissioner Hindu Religious and Charitable Endowment Vs. P. Shanmugama and Others, has held as under:

In our view, the High Court has no jurisdiction in the second appeal to interfere with the finding of facts recorded by the first appellate court after careful consideration of the evidence, oral and documentary, on record. It was not open to the High Court to reverse the findings of facts as it has done.

In view of the above, substantial question of law is decided in favour of the defendants and against the appellants.

Consequently, all the three appeals are dismissed with costs and the impugned judgment and decree passed by the lower appellate Court is confirmed.