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 [REPORTABLE]

                   IN THE SUPREME COURT OF INDIA  

                       CIVIL APPELLATE JURISDICTION

                 CIVIL APPEAL Nos.4181-4182 OF 2015  

  (ARISING OUT OF SPECIAL LEAVE PETITION(C)NOs. 36311-12/2014

JAGDISH CHAND SHARMA                                    ...….APPELLANT

                         Vs.

NARAIN SINGH SAINI (DEAD)                                  …..RESPONDENTS THROUGH HIS LRs & Ors.                                                      

J U D G M E N T AMITAVA ROY, J.       Leave granted.

1.  The genesis of the lingering dissension in the instant

proceeding  lies  in  the  Will  claimed  by  the  appellant

herein to have been executed on 22-10-1973 by Nathu

Singh (since deceased),  the predecessor in the interest of

the  respondents,  thereby  bequeathing  the  property

mentioned therein to him (appellant). The judgment and

order  dated  15-05-2007  passed  in  P  C  No.  249/1980

(re-numbered  as  PC  No.  160/2006),  by  the  District

Judge,  Tis  Hazari  Court,  Delhi,  granting  Letter  of

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Administration to  him,  has  been reversed by  the  High

Court  of  Delhi  by  its  judgment  and  order  dated

02-07-2014 rendered in FAO No. 279 of 2007 as assailed

herein.  

2.  We have heard Mr. Paras Kuhad, Sr. Advocate for the

appellant and Mr. Daljeet Singh, Senior Advocate for the

respondents.

3.  A brief outline of the pleaded facts would portray the

rival  orientations.  The  appellant,  to  reiterate,  filed  an

application under Section 276 of the Indian Succession

Act 1925 (for short hereinafter referred to as the Act) with

the  Will  annexed,  seeking  grant  of  Letter  of

Administration.   He  stated  that  the  Will  had  been

executed by Mr. Nathu Singh on 22-10-1973, as the sole

and absolute owner amongst others of Municipal House

Tax No. 807 (Private No. A/152 to A/162/1) situated at

Sukhdev  Nagar,  Kotla  Mubarakpur,  New  Delhi,

bequeathing the same to him.  The appellant stated that

the testator nursed great love and affection for him for

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the  services  rendered  by  him  and  was  not  favourably

disposed towards his sons for their disagreeable conduct

and activities.  It was mentioned that the testator expired

on  02-08-1980  at  Delhi  whereafter,  Shri  Harswaroop

Sharma,  resident  of  41,  Subhash  Market,  Kotla

Mubarkpur, informed him to receive the Will lying in his

custody.  It  was, thereafter,  according to the appellant

that the application for Letter of Administration was filed.

In the petition, he averred the names and particulars of

the  sons  and  daughters  of  the  deceased  testator  and

disclosed further that the subject matter of the Will was

located in New Delhi.  That the Will was executed and

made in Delhi was also mentioned.  The appellant did

provide and sign a verification declaring the correctness

of  the  statements  made  therein.  Further  another

verification subscribed  by  Mr.  G.  C.  Kumar,  Advocate,

Delhi in the capacity of an attesting witness to the Will,

was also made.  

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4.  On  the  receipt  of  the  notice  of  the  proceedings

registered on this petition, objections were filed by Mr.

Jaswant Singh (since deceased) son of the testator and

also by his other sons and daughters separately.  For the

sake of brevity the substance of the objections registered

by the children of the testator would be synopsised.   

5.  It was pleaded that the property said to have been

bequeathed  was  ancestral  joint  Hindu  family  property

and thus, the testator had no authority to execute the

Will in favour of the appellant.  While denying the claim

that the appellant did enjoy the love and affection of the

testator, it was asserted that he (appellant) in fact had

been appointed by the testator as his rent collector on

11-05-1973 and was endowed with a registered power of

attorney.   The  objectors  averred  that  as  the  appellant

failed to render his sincere services, the power of attorney

was revoked.  That the appellant did create tenancy in

favour of his wife, Shrimati Santosh Kumar Sharma in

respect of shop No.F–16 belonging to the testator without

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his  knowledge  for  which he  (testator)  had  instituted  a

suit against him (appellant) in the year 1975 for recovery

of damages was also stated.  The objectors did further

refer to several complaints made by the testator against

the appellant for his unsatisfactory services and misuse

of power including misappropriation of rents collected by

him.  They also stated that the appellant had appeared

as a witness in a criminal case against the deceased and

was also placed under suspension by his employer where

he served as a teacher.   

6.   The respondents/objectors averred further that  the

appellant  was  present  at  the  time  of  execution  of  two

other Wills by the testator in favour of one Kisan Lal and

Vimala Devi and suggested that he (appellant) by playing

fraud on him (testator) might have got his Will signed, in

the process of getting the above two documents executed.

In all, the respondents/objectors assertively emphasized

that  the  facts  and  circumstances  prevailing  at  the

relevant  point  of  time  did  not  at  all  warrant/justify

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execution of any Will by Mr. Nathu Singh in favour of the

appellant by depriving his children.  They, in categorical

terms,  denied  the  execution  of  the  Will  and  also  the

signatures and the thumb impressions of the Mr. Nathu

Singh thereon as claimed by the appellant.  They averred

as well that the testator was conversant only with Hindi

language and that the contents of the Will in English had

never been read over or explained to him.

7.   In  his  rejoinder,  the  appellant  refuted  the

respondent’s  cavil  based  on  jointness  of  the  property.

While insisting that the property was the self  acquired

asset of the deceased, the appellant stated that therefrom

the testator, not only, had conveyed portions by way of

sale,  but  also,  had  gifted  some  to  his  children.  He

categorically  denied  the  allegation  of  his  disagreeable

activities and misuse of powers.  He instead, did impute

fraudulent act of the respondent, Mr. Jaswant Singh in

getting his name mutated in the revenue records in place

of  Mr.  Nathu Singh for which,  a litigation between the

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two did ensue. He accused the said respondent for being

responsible for  institution of  cases against  him by Mr.

Nathu Singh.  

8.  On these competing pleadings, the following issues

were framed:

1. Whether  Mr.  Nathu  Singh  Saini,  deceased executed the Will dated 22-10-1973, validly while possessed of a sound disposing mind?

2. Relief.  

8.1 The parties thereafter adduced oral and documentary

evidence.  Whereas, the appellant examined six witnesses

including himself, Mr. G. C. Kumar, Advocate (attesting

witness), AW 3  Mr. A. K. Jain, Sub-Registrar, New Delhi

and  AW  5  Mr.  Budh  Ram  (attesting  witness),  the

respondents offered 8 witnesses in support of their case.

Needless to say, the appellant proved amongst the others

the Will, Exhibit A-1.

9.   The  learned  Trial  Court,  on  its  assessment  of  the

evidence  adduced,  concluded  that  the  appellant  could

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prove that the Will dated 22-10-1973 Exhibit A -1 was

executed by the testator in a sound disposing state of

mind after fully understanding its contents and that it

was duly registered.  Having held so, it observed that the

onus of  proving that  the document was not  a genuine

Will did shift to the respondents.  On an analysis of the

evidence  offered  by  the  respondents,  the  learned  Trial

Court was of the view that the same was inadequate to

displace  the  validity  of  the  Will.   It  thus  returned  a

finding that the Will dated 22-10-1973 Exhibit A-1 had

been  validly  executed  by  the  testator  with  a  sound

disposing  state  of  mind  in  presence  of  two  attesting

witnesses.  Consequently, the Letter of Administration as

prayed for, by the appellant vis-à-vis the said Will was

granted.  

10.   Aggrieved,  the respondents preferred appeal  being

FAO  279/2007  in  the  High  Court  of  Delhi.   By  the

impugned  judgment  and  order,  as  adverted  to  herein

above,  the verdict  of  the learned Trial  Court  has been

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reversed.  The High Court on a threadbare evaluation of

the  pleadings  and  the  evidence  on  record,  on  the

touchstone of the relevant provisions of the Act and the

Indian Evidence Act, 1872 (for short hereinafter referred

to  as  Act  1872),  determined  that  the  Will  dated

22-10-1973 had not been proved as per law and that no

Probate  or  Letter  of  Administration  could  be  granted.

Referring to the testimony of the attesting witnesses, the

High Court held that they could not prove the execution

of the Will as well as the attestation thereof within the

meaning of Section 63 (c) of the Act, a mandatory legal

edict.  The High Court also dismissed the plea based on

Section 71 of the Act, 1872 noting that the evidence of

the  attesting  witnesses produced by the  appellant,  did

not only demonstrate lack of intention to attest the Will,

but  also,  rendered the  execution of  the document  and

their  signatures  thereon  doubtful.   The  High  Court

noticed  as  well  the   circumstances  attendant  on  the

bequest to render it  doubtful in view of the suspicious

bearing  thereof.   It  amongst  others  noted  therefore  to

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arrive at this conclusion, that the deceased/testator was

versed  only  in  Urdu and  that  the  Will  was  drafted  in

English, and that on the very same day he had executed

two  other  Wills  involving  different  properties  with  the

possibility that the Will in question, was got signed, by

representing it to be a part of the other transactions.  The

history  of  past  litigation  between  the  testator  and  the

appellant involving allegations of  his unauthorized acts

and misuse of power also did weigh with the High Court

to deduce that it was unlikely that the testator would out

of natural love and affection bequeath his property or any

portion thereof to such a person, by depriving his own

children.   The  decision  of  the  Trial  Court  was  thus

interfered with.  

11.  Mr. Kuhad has insistently argued that the impugned

judgment and order suffers from apparent misreading of

pleadings and evidence on the record and is thus liable to

be annulled.  Relying in particular on the testimony of

the witnesses AW 1 and AW 5, the learned senior counsel

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has urged that the execution and the attestation of the

Will in question have been duly proved as required under

Section 63 of the Act.  Drawing sustenance from Section

71  of  Act  1872,  the  learned  senior  counsel  has

maintained that even assuming that the testimony of AW

1 and AW 5 was deficient vis-à-vis the requirement of the

Section 63 (c) of the Act, the appellant having examined

both the attesting witnesses, it was permissible for him to

prove  the  execution  and  attestation  of  the  Will  by

adducing other evidence.   Mr. Kuhad has thus argued

that the evidence of AW 3, Sub-Registrar before whom,

the Will  had been registered on completion of  all  legal

formalities, did as well assuredly establish the execution

and attestation of the Will as required by law and thus

the High Court had erred in holding to the contrary. As

the testimony of AW 3, the Sub-Registrar amply proved

all the essentials of Section 63 (c) of the Act, the learned

Trial  Court  had  validly  granted  the  Letter  of

Administration, he maintained.  Referring to the evidence

of AW 1, Mr. G. C. Kumar, Advocate, Mr. Kuhad urged

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that  the  verification  signed  by  him  at  the  foot  of  the

application for Letter of Administration did buttress, the

correctness of the contents thereof and, thus the stray

deviations in his version at the trial ought to have been

discarded  as  inconsequential.  In  any  case,  the

casualness  of  the  testimony  of  the  attesting  witnesses

does not adversely impact upon the validity of the Will, as

such conduct could have been the yield of an endeavour

of the respondents to gain them over.  While repudiating

the  conclusions  of  the  High  Court  inferring  denial  of

execution by the attesting  witnesses and lack of animus

on their part to attest the Will as well as the suspicious

circumstances noticed by it, to be perverse and opposed

to  the  weight  of  the  materials  on  record,  the  learned

senior counsel insisted that having regard to the basic

requisites of valid  Will in law, namely, free and sound

disposing state of mind of the testator, understanding of

the  implication of  the  bequest,  admission of  execution

thereof  by  him/her  and  due  attestation  thereof,  the

deductions  of  the  High  Court  contrary  thereto  are

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indefensible  and are  thus liable  to  be  negated.   Apart

from  contending  that  the  respondents  had  failed  to

discharge their onus to prove their objections in the face

of the overwhelming evidence of execution and attestation

of the Will in law, the learned senior counsel has urged

that the High Court had fallen in error as well in acting

upon  the  additional  evidence  adduced  before  it  under

Order 41 Rule 27 of the Civil Procedure Code (for short

hereinafter  referred  as  Code),  without  offering  an

opportunity to the appellant to counter such prayer.  The

following  decisions  were  relied  upon  to  reinforce  the

above contentions.  

 AIR 1955 SC 346 Bhaiya Guruji Dutt Singh Vs Gangotri

Dutt Singh, AIR 1959 SC 443 H Venkatachala Iyengar Vs

B N Thimmajamma and Others,(1974) 2 SCC 600 Kewal

Pati (Smt) Vs State of UP and Others, (1995) 4 SCC 459

Surendra Pal and Ors. Vs. Dr. (Mrs.)Saraswati Arora and

Anr.,(2003) 2 SCC 91 Janki Narayan Bhoir Vs. Narayan

Namdeo  Kadam,  (2005)  8  SCC  67  Pentakota

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Satyanarayana  and  Ors.  Vs.  Pentakota  Seetharatnam

and Ors., (2013) 7 SCC 490 M.B. Ramesh (D) by LRs. Vs.

KM Veeraje Urs (D) by LRs and Ors.

12.   Per  contra,  Mr.  Singh  has  argued  that  it  being

apparent  on  the  face  of  the  records  that  neither  the

execution  nor  the  attestation  of  the  Will  involved  had

been  proved  by  any  of  the  witnesses,  the  impugned

judgment is unassailable and thus the instant petition is

liable to be dismissed in limine.  The findings recorded by

the High Court being founded on an indepth scrutiny of

the materials on record, are unmistakably conclusive and

thus this Court would not embark upon a fresh appraisal

thereof, he maintained.  The learned senior counsel by

referring to the evidence of the witnesses AW 1, AW 5 in

particular has emphatically pleaded that as the appellant

had failed to prove either the execution or the attestation

of the Will, Section 71 of the Act of 1872 is inapplicable

to the facts of the present case, and thus the testimony of

AW 3 is wholly irrelevant.  Without prejudice to this, the

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learned senior counsel has urged that the evidence of AW

3 as well falls short of the requirements of Section 63 (c)

of the Act and thus, cannot be invoked to the advantage

of the appellant.  As the evidence of AW 1 and AW 5 does

not attract the contingencies enumerated in Section 71 of

Act 1872, the version of AW 3, in any view of the matter,

is of no avail to the appellant, he asserted. The learned

senior  counsel  maintained  that  even  de  hors  the

additional  evidence  laid  before  the  High  Court  under

Order 41 Rule 27 of the Code, the findings recorded in

the impugned judgment and order are sustainable in law

and on facts and thus no interference therewith is called

for.   Mr.  Singh  relied  on  the  decisions  hereunder  to

endorse his arguments.

(1977) 1 SCR 925 Smt. Jaswant Kaur Vs Smt. Amrit Kaur

and Ors., (2001) 9 SCC 503 Neki Ram and Ors. Vs. Ama

Ram Godara and Ors., (2003) 2 SCC 91 Janki Narayan

Bhoir Vs. Narayan Namdeo Kadam.

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13.  The contentious pleadings and the assertions based

thereon in the backdrop of the evidence as a whole have

been duly analysed by us.  The competing perspectives

notwithstanding, the purport and play of Section 63 of

the  Act  read with Sections 68 and 71 of  Act  1872 as

deciphered by various judicial enunciations would have a

decisive  bearing  on  the  process  of  resolution  of  the

irreconcilable  issues  that  demand to  be  addressed.   It

would thus be apt, nay, imperative to refer to these legal

provisions before embarking on the appreciation of the

evidence to the extent indispensible.  Section 63 of the

Act and Sections 68 and 71 of the Act 1872, are thus

extracted hereunder for ready reference.  

Indian Succession Act, 1922

“63.  Execution  of  unprivileged  Wills.-  Every testator,  not  being  a  soldier  employed  in  an expedition  or  engaged  in  actual  warfare,  1[or  an airman so employed or engaged,]  or  a mariner  at sea, shall execute his Will according to the following rules:-

(a) The testator shall sign or shall affix his mark to  the  Will,  or  it  shall  be  signed  by  some  other person in his presence and by his direction.

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(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed  that  it  shall  appear  that  it  was  intended thereby to give effect to the writing as a Will.  

(c) 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 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 shall  sign the Will in the presence of the testator, but it shall not be  necessary  that  more  than  one  witness  by present at the same time, and no particular form of attestation shall be necessary.  

Indian Evidence Act 1872

68.  Proof of execution of document required by law to be attested- 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;

Provided 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 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

71.  Proof  when  attesting  witness  denies  the execution.-If  the attesting witness  denies or  does not  recollect the  execution  of  the  document,  its execution may be proved by other evidence.

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14.  As would be evident from the contents of Section 63

of  the  Act  that  to  execute  the  Will  as  contemplated

therein, the testator would have to sign or affix his mark

to it or the same has to be signed by some other person

in  his  presence  and  on  his  direction.  Further  the

signature or mark of the testator or the signature of the

person signing for him has to be so placed that it would

appear that it was intended thereby to give effect to the

writing as Will.  The Section further mandates that the

Will shall have to be attested by two or more witnesses

each of whom has seen the testator sign or affix his mark

to  it  or  has  seen  some  other  persons  sign  it,  in  the

presence  and  on  the  direction  of  the  testator,  or  has

received from the testator, personal acknowledgement of

a  signature  or  mark,  or  the  signature  of  such  other

persons and that each of the witnesses has signed the

Will  in  the  presence  of  the  testator.   It  is,  however,

clarified that it would not be necessary that more than

one witness  be  present  at  the  same time and that  no

particular form of attestation would be necessary.

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15.   It  cannot  be  gainsaid  that  the  above  legislatively

prescribed essentials of a valid execution and attestation

of a Will under the Act are mandatory in nature, so much

so,  that  any  failure  or  deficiency  in  adherence  thereto

would  be  at  the  pain  of  invalidation  of  such

document/instrument of disposition of property.  

15.1.   In the evidentiary context Section 68 of  the Act

1872 enjoins that if a document is required by law to be

attested,  it  would  not  be used as evidence unless  one

attesting witness, at least, if alive, and is subject to the

process of Court and capable of giving evidence proves its

execution.  The proviso attached to this Section relaxes

this requirement in case of a document, not being a Will,

but 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.

15.2.  These  statutory  provisions,  thus,  make  it

incumbent for a document required by law to be attested

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to  have  its  execution  proved  by  at  least  one  of  the

attesting witnesses, if alive, and is subject to the process

of  Court  conducting  the  proceedings  involved  and  is

capable of giving evidence.  This rigour is, however, eased

in case of a document also required to be attested but not

a Will, if the same has been registered in accordance with

the provisions of the Indian Registration Act, 1908 unless

the  execution  of  this  document  by  the  person  said  to

have executed it  denies the same.  In any view of  the

matter, however, the relaxation extended by the proviso

is  of  no  avail  qua  a  Will.   The  proof  of  a  Will  to  be

admissible in evidence with probative potential, being a

document  required  by  law  to  be  attested  by  two

witnesses, would necessarily need proof of its execution

through at least one of the attesting witnesses, if alive,

and  subject to the process of the Court concerned and is

capable of giving evidence.  

15.3  Section 71 provides, however, that if the attesting

witness denies or does not recollect the execution of the

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document,  its  execution  may  be  proved  by  other

evidence. The interplay of the above statutory provisions

and  the  underlying  legislative  objective  would  be  of

formidable  relevance  in  evaluating  the  materials  on

record and recording the penultimate conclusions.  With

this  backdrop,  expedient  it  would be,  to  scrutinize  the

evidence adduced by the parties.  

15.4  As  hereinbefore  mentioned,  the  appellant  has

endeavoured to prove the execution and attestation of the

Will, Ex. A–1 through AW 1 Mr. G. C. Kumar and AW 5

Mr. Budh Ram. He has examined as well AW 3 Mr. A. K.

Jain, Sub Registrar, New Delhi before whom the Will was

registered  on  the  very  same  day  of  its  execution  i.e.,

22-10-1973.

15.5. Be that as it  may, AW 1 Mr. Kumar deposed on

oath that he was enrolled as a lawyer in or about 1971

and used to assist his father who was a deed writer in

Urdu language.   The witness stated that he used to come

to Tis Hazari Court for attending his cases.  He testified

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to have seen the Will Ex. A-1 which he claimed had been

drafted by him.   He failed to remember as to whether the

testator, Mr. Nathu Ram Singh had come to his father in

his presence or that his father had given him instructions

to write the Will.  The witness even failed to remember

whether the Will had been given to him by his father or to

the testator.  He also could not recall as to whether he

was present when the testator had signed the Will.  The

witness,  however,  admitted  that  Ex.  A-1  did  bear  his

signatures as an attesting witness but deposed that due

to lapse of time, he did not remember whether any other

person was also present and had attested the document

when he had signed it.   He, however, stated to have been

present in the office of the Sub Registrar when the Will,

Ex. A-1 was presented for registration. He also admitted

to have signed the document on the backside thereof in

the presence of the clerk of the office.  The witness stated

that he had also identified the testator  before the Sub

Registrar but clarified that  it  was as per the prevalent

practice for an identifying witness to do so.   He added by

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stating  that  he  had signed the  document  only  in  that

capacity.   The witness deposed further, that he could not

say whether the thumb impression and the signatures of

the testator at the time of the registration and appearing

on the back of page one of the Will had been obtained in

his  presence  or  not.   He  even  failed  to  recall  as  to

whether the contents of the Will had been read over and

explained to the testator by him or by his father.  

15.6   This  witness  was  declared  hostile  and  was

cross-examined  on  behalf  of  the  appellant  in  course

whereof he deposed that he could not say whether he had

signed  the  Will  in  presence  of  the  testator.   When

confronted, he admitted to have signed the certificate at

the  foot  of  the  application  in  Section  276  of  the  Act

praying for grant of Letter of Administration but denied to

have  done so as  an attesting  witness  of  the  Will.   He

stated  instead  that  he  had  put  his  signatures  as  the

appellant wanted him to do so.  He even denied to have

read  the  contents  of  the  certificate.  He  refuted  the

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suggestion that he had made a false statement in Court

being won over by the respondents.  

16.  AW 2 Shri. Harswaroop has stated on oath that in

November,  1973,  the  testator  had handed over  to  him

one Will  with  a  direction to  deliver  it  to  the  appellant

upon his death.   According to this witness, he did so

after the demise of Mr. Nathu Singh and handed over the

Will to the appellant.  The witness stated to have seen the

Will Ex. A-1, bearing the signature of Mr. Nathu Singh at

several places.  He claimed of being conversant with the

handwriting  and  signature  of  the  Mr.  Nathu  Singh.

Admittedly,  however,  this witness is neither one to the

execution  of  the  Will,  nor  the  attestation  thereof  as

obligated by law.   

17.  Before reverting to AW 3 in the ordinary sequence,

the testimony of AW 5 figuring in the chain of attestation

as presented by the appellant would be referred to. This

witness,  Mr.  Budh  Ram  claimed  to  have  known  the

deceased/testator.  He stated on oath that he had seen

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the  document  Ex.  A-1  and  identified  his  signatures

thereon.   He deposed to  have  signed the  document  in

presence of  the testator.  He, however,  hastened to add

that he had not  seen the testator signing the Will.  He

denied to have appeared before the Sub Registrar or to

have identified the testator before the said authority.  He

stated  that  he  had  signed  the  document  outside  the

office.  Though,  he  asserted  that  testator  was  mentally

alert on the date on which he (witness) had signed the

Will, he clarified that he did not do so on the asking of

the  testator.   The  witness,  however,  admitted  the

presence of the testator at that time.

17.1   In  cross-examination,  the  witness  disclosed that

the appellant was also present on the date on which he

had signed the document and that he did not know the

contents of the said document. He stated further that he

had  not  been told  that  any  Will  was  executed  by  Mr.

Nathu Singh and that he was to attest it.  Noticeably, this

witness had not been declared to be hostile.

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18.  AW 3 Mr. A. K. Jain who at the relevant time was the

Sub Registrar, New Delhi, on oath, stated that the Will

Ex. A-1 had been presented before him for registration on

22-10-1973.  According to this witness, the testator was

identified before him by one Mr. Budh Ram and Mr. G. C.

Kumar, Advocate.  The witness stated that these persons

did  sign  the  document  in  his  presence  as  identifying

witnesses  on  the  back  of  page  No.  1  of  Ex.  A-1.  He

deposed  as  well  that  the  testator  was  read  out  the

contents of the document and was asked as to whether

he  was  executing  the  Will  himself  and  that  on  his

acknowledgement  in  the  affirmative,  he  (witness)  made

his  endorsement  on  the  document  in  his  own  hand.

While proving his endorsement, the witness iterated that

the testator had admitted the execution of the Will and

also  proved  his  (testator)  signatures  and  thumb

impressions thereon.   

18.1   In his cross-examination, the witness stated that

he did not know the testator personally and that he had

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made his endorsements on the Will in the capacity of a

registering authority only.  He admitted that on the very

same  date,  another  document  purporting  to  be  a  Will

executed  by  Mr.  Nathu  Singh  was  also  presented  for

registration for which the identifying witnesses had been

the same.

19.  The testimony of AW 4 Mr. Ramchander Sharma is

to the effect that the appellant had borne the expenses

for the firewood of the funeral pyre of the deceased Nathu

Singh.  The testimony of AW 7 Mr. M. S. Santosh Goel

and AW 8 Mr. Satish Kumar being insignificant vis-à-vis

issues involved is not necessary to be dilated upon.

20.  AW  6  Mr.  Jagdish  Chander  Sharma,  appellant

deposed  that  he  had  joined  the  deceased  Mr.  Nathu

Singh, in the year 1952 on the recommendation of his

brother-in-law.  He stated that  the deceased entrusted

him the duty to realise rent of his property and also to

look  after  the  matters  pertaining  to  litigation  in

connection  therewith.  The  witness  stated  that  in  the

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process, he was also made the attorney of the deceased

and while realising rent used to accompany Mr. Jaswant

Singh,  his  (Nathu  Singh)  son.   He  referred  to  some

differences between the father and the son with regard to

alleged  wrong  doings  of  the  latter  qua  immovable

properties resulting in institution of a suit by Mr. Nathu

Singh  against  Mr.  Jaswant  Singh.   According  to  this

witness,  Mr.  Jaswant  Singh  was  inimically  disposed

towards him for which he made a complaint against him

in  his  department  for  which  he  was  placed  under

suspension.  He stated that Mr. Nathu Singh thereafter,

in the interest of his job, cancelled his power of attorney

but asked him to look after the property and to realise

the rents.  According to the witness, Mr. Jaswant Singh

out  of  his  persisting  animosity  caused  a  raid  to  be

conducted  in  his  house,  and  after  the  demise  of  Mr.

Nathu  Singh  did  openly  intimidate  him  of  dire

consequences.  He denied to have visited the office of the

Sub Registrar on 22-10-1973 and insisted that AW 1 Mr.

G. C. Kumar, Advocate had signed the certificate of the

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petition under Section 276 of the Act.  He also asserted

that AW 1 had attested the Will after seeing the same.

According to this witness, the relationship of Mr. Nathu

Singh  with  his  sons  was  strained  as  they  had  been

endeavouring  to  take  over  the  possession  of  his

properties.   The witness identified the signature of  the

testator on the Will Ex. A-1.

21.   In  his  detailed  cross-examination,  the  witnesses

referred to several  legal  proceedings,  civil  and criminal

instituted  by  the  testator  which  according  to  him,

however,  did  fizzle  out  with  time  without  yielding  any

adverse verdict against him.  While mentioning that Mr.

Nathu  Singh  used  to  dispose  of  his  properties  by

executing  Wills,  the  witness  also  mentioned  about

litigations between him and his son Mr. Jaswant Singh.

He admitted that at the time of death of the testator, his

wife,  sons,  daughters  and  several  grand children  were

alive.   In categorical  terms, he stated that the testator

had no quarrel  with his  wife  and daughters.   He also

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mentioned about gift of properties by Mr. Nathu Singh to

his sons.  

22.  The testimony of RW 1 Mr. Ramesh Kumar, RW 2

Mr. M. S. Rao and RW 4 Mr. Ramesh Chander Sharma

being not of any determinative significance is not being

referred to.  RW 3 Mr. Narayan Singh Saini, son of the

testator deposed that his(testator) family comprised of his

wife, Smt. Chanderwati, three sons and three daughters.

He stated that during the life time of the testator, he had

executed three separate gift deeds conveying property to

each of his sons.  That Mr. Nathu Singh had a host of

grand  children  was  also  stated  by  this  witness.   He

mentioned  in  particular  that  the  testator  had  a  very

cordial relationship with the children till he died so much

so  that  they  along  with  the  grand  children  used  to

congregate on all family functions.  He averred that the

testator had appointed the appellant as his attorney for

collecting  rent  from his  tenants.  Thereby,  the  testator

had also authorized the appellant to prepare documents

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with regard to the properties which he intended to sell

from time to time. The witness deposed that the testator

eventually  had  to  cancel  the  power  of  attorney  as  the

appellant  was  found  indulging  in  interpolation  of

tenancies  without  his  consent  and  with  malafide

intention  misappropriated  his  properties.   He  stated

further that  at  the time of  his  death,  the testator  was

aged ninety years. He reiterated that the Will in question

was  deceitfully  inserted  amongst  other  documents  to

procure the signature of the testator.  

23.  The version of RW 5 Mr. Gulab Chand and RW 6 Mr.

Bhupesh Gupta is also of not any consequence vis-à-vis

the  issues  involved.  RW  7  Mr.  Ram  Chander  Saini

deposed on oath that  he used to  represent Mr.  Nathu

Singh  in  various  legal  proceedings  including  one

instituted  against  the  appellant.   He  denied  the

suggestion  that  Mr.  Nathu  Singh  had  a  very  cordial

relationship with the appellant.  

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24.  RW 8 Mr. Rajinder Singh, grandson of Mr. Nathu

Singh, in his statement on oath expressed his ignorance

about  any  litigation  between  his  grandfather  and  his

father Mr. Jaswant Singh.  

25.  The fascicule of the evidence viewed as hereinabove

qua the execution and the attestation of the Will thus can

be compartmentalised into two slots. The first comprising

of the testimony of AW 1 Mr. G. C. Kumar and Mr. Budh

Ram and the other of AW 3 Mr. A. K. Jain, Sub Registrar,

New Delhi.

26.  Evident it would be from the deposition of AW 1 that

though  he  owned  to  be  the  author  of  the  document,

having drafted it, he could not recall whether he did so

on the instruction of the testator. He did not remember

as well as to whether the Will had been handed over by

him to his father or the testator.  He failed to recollect

also  whether  he  was  present  when  the  testator  had

signed the Will, Ex. A-1. Though, he admitted that the

document did bear his signatures as an attesting witness

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at two places being point “A” and “B”, he could not recall

whether there was any other person also present and had

similarly attested the document when he had signed at

point  “A”.   He  was  categorical  in  stating  that  he  was

present in the office of the Sub Registrar when the Will

was  presented  for  registration  and  had  signed  on  the

back page thereof but clarified that he did so only as an

identifying witness. He could not say as to whether the

signatures  and  thumb  impressions  of  the  testator  at

point “Y” and “Y–1” on the back page of the Will had been

obtained in his presence or not.  He also could not state

whether  the  contents  of  the  Will  were  read  over  and

explained to the testator by him or his father.  He was

candid to assert that he was not sure as to whether he

had signed the Will in presence of the testator or not or

whether  the  testator  had  signed  the  document  in  his

presence.   He was unequivocal  in  stating  that  he  had

signed the certificate at the foot of the petition for grant

of Letter of Administration as he was asked to do so by

the appellant and he did not do so in the capacity of an

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attesting witness to the  Will.   He even denied to have

gone  through  the  contents  of  the  certificate  before

subscribing thereto.

27.  The evidence of AW 1, as a whole is, therefore clearly

deficient vis-à-vis with the requirements of Section 63 (c)

of  the  Act.   Noticeably,  he  does  not  deny  either  the

execution of the Will or has not failed to recollect the said

event.  In clear terms, this witness stated that though he

had signed the document, he was not sure that he did so

in the presence of any other person attesting the same.

He  could  not  also  remember  as  to  whether  he  was

present  when  the  testator  had  signed  the  Will.   He

clarified in no uncertain terms that his signatures on the

Will before the Sub Registrar were only as an identifying

witness. His is thus not a stance of either denial of the

execution  of  the  Will  or  of  failure  to  recollect  such

execution as contemplated in Section 71 of the Act 1872.

28.  To cap it all, he even endeavoured to represent that

he had signed the certificate at the foot of the application

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for  the  Letter  of  Administration not  voluntarily  but  on

being insisted upon by the appellant.  He was categorical

in his testimony to the effect that he had not signed the

certificate  acknowledging  the  fact  that  he  was  an

attesting  witness.   The  evidence  of  AW  1  Mr.  G.  C.

Kumar, Advocate thus does not inspire confidence to be

acted upon in proof of the execution and attestation of

the Will, EX. A-1.

29.  AW 5 Mr. Budh Ram was categorical in owning his

signatures  on  the  Will  at  points  “C”  AND  “Y-2”  and

claimed to have to put the same in the presence of the

testator.  He, however, was unhesitant in testifying that

he had not seen the testator signing the document at the

points “B”, “Y-1”. He denied to have appeared before the

Sub Registrar or to have identified the testator before the

said authority.  His unambiguous statement on oath is

that he had signed the document outside the office of the

Sub Registrar.  His evidence as well cannot be construed

to be one of denial of execution of the Will. This witness,

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as  his  evidence  would  clearly  demonstrate,  also  did

neither falter nor, was equivocal so as to suggest that he

failed to recollect  the execution of  the document.   The

conditions, precedent for application of Section 71 of the

Act 1872, therefore, are also not available in the context

of the evidence of this witness.

29.1  On a cumulative assessment of the evidence of AW

1  and  AW  5,  we  are  of  the  unhesitant  opinion  that

Section 71 of the Act, is not invocable  in the facts and

circumstances  of  the  case  so  as  to  permit  the

propounder/appellant to resort to any other evidence to

prove the execution and attestation of the Will involved

as  comprehended therein.  The  account  of  the  relevant

facts bearing on the execution and attestation of the Will

as  provided  by  these  witnesses  though  is  thoroughly

inadequate qua the prescriptions of Section 63 (c) of the

Act does not amount to denial of execution or failure to

recollect the said event as contemplated in this provision.

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30.  The above notwithstanding, expedient it would be, in

the face of the protracted controversy, to examine as well

the evidence of AW 3, Mr. A. K. Jain Sub Registrar, New

Delhi,  refuge  whereof  has  been  sought  for  by  the

appellant under Section 71 of the Act, in the alternative.

30.1  This witness, to reiterate, was the Sub Registrar at

Asaf Ali road, New Delhi on the date on which, as he had

testified,  the  Will  was  laid  before  him  for  registration.

Incidentally, it was on the very same date of its execution

i.e. 22-10-1973. He deposed that the testator Mr. Nathu

Singh was identified before him by AW 1 Mr. G. C. Kumar,

Advocate, AW 1 and Mr. Budh Ram AW 5. According to

this witness, these two persons did sign the document in

his presence as identifying witnesses on the back of page

No. 1 thereof.  He stated further that the contents of the

Will were read out to the testator and he was asked as to

whether he did execute the same himself.   The witness

deposed  that  to  this,  the  testator  acknowledged  in  the

affirmative  whereupon he  (witness)  endorsed  the  same.

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The  witness  proved  his  endorsements  at  the  portions

encircled “S” and “S-1”.  He also stated that the testator

had signed and put his thumb marks as “Y” and “Y-1” in

his presence in acknowledgement of the execution of the

Will by him.   

30.2   In cross-examination, the witness admitted that he

had  made  his  endorsements  in  the  capacity  of  a

registering  authority  only.  While  admitting  that  on  the

very same date another document, purporting to be a Will

executed by the same testator had also been presented

before  him  for  registration,  he  admitted  that  both  the

identifying  witnesses  of  the  Will  involved were  also  the

identifying witnesses of the other Will.

31.  A plain perusal of the Will presented in course of the

arguments would reveal that the space therein meant to

mention the age and the date of  execution thereof  had

remained vacant till it was produced for registration.  This

was though as claimed by the appellant,  the document

had already been executed by the testator by putting his

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signature at points “B” on both the pages along with the

signatures of the attesting witnesses AW 1 and AW 5 as

well. On the back of page No. 1 of the Will, there are two

signatures and thumb impressions “Y” and “Y-1” said to

be of the testator beneath the stamped endorsements in

the official proforma signed by AW 3.  On the same page,

the signature of AW 1 Mr. G. C. Kumar, Advocate, and

thumb impression of AW 5 Budh Ram are also available

at points “X” and “Y-2” respectively.  

31.1  Noticeably,  though  the  official  endorsements,  as

above seem to suggest that those signified admission of

execution of the document by the testator before AW 3,

the evidence of this witness on oath, does neither prove

nor  demonstrate  in  unmistakable  terms  that  both  the

identifying  witnesses  had  seen  the  testator  put  his

signatures and thumb impressions for  the execution of

the Will.  His testimony also does not establish that the

witnesses AW 1 and AW 5 had put their signature/thumb

impression before  the  Sub Registrar  in  presence  of  the

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testator.  This assumes significance not only as per the

non-relaxable  mandate  of  Section 63 (c)  of  the Act  but

also  for  the  version  of  AW  1  that  he  had  signed  the

document at the time of registration only as an identifying

witness and that he did not remember as to whether the

thumb impressions and the signatures of the testator at

“Y” and “Y-1” were obtained in his presence or not.  The

testimony of AW 5 to the effect that his signature as well

as thumb impression at “Y-2” though made in presence of

the testator was taken outside the Sub Registrar’s office is

significant as the same, if accepted, would mean that he

had not seen the testator signing the Will either at point

“B” or putting his signature and thumb impression at “Y”

and “Y-1” on the backside of page No. 1 of the Will.  To

reiterate, he stated on oath that he had not identified the

testator before the Sub Registrar. Evidently, AW 3 was not

present  at  the  time of  initial  execution of  the Will  and

thus could not have witnessed the said event.  

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32.  In the overall perspective thus, the testimony of AW

3, in our estimate, does not conform to the imperatives of

the Section 63 (c) of the Act. His narration on affirmation

at  the  trial,  does  not  either  by  itself  meet  the

essentialities  of  Section  63  (c)  of  the  Act  or  can  be

construed to be a supplement of the evidence of AW 1

and  AW  5  to  furnish  the  proof  of  execution  and

attestation of the Will as enjoined by law.  

33.  The evidence of AW 1, AW 3 and AW 5, anlaysed

collectively  or  in  isolation,  does  not  evince  animo

attestandi, an essential imperative of valid attestation of a

Will. As Section 71 of the Act, 1872 by no means can be

conceived of to be a diluent of the rigour of Section 63 of

the Act, the testimony of these witnesses fall short of the

probative  content  to  construe  Ex.  A-1  to  be  a  validly

executed and attested Will as envisaged in law.

34.  In Bhaiya Guruji Dutt Singh (supra), the testimony

of  the  two  attesting  witnesses  was  found  wanting  in

credibility for which the propounder did fall back on the

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admission of the testator about the execution of the Will

involved  at  the  time  of  registration in  presence  of  two

persons  Mr.  Mahadeo  Prasad  and  Mr.  Nageshur,  who

also  had  appended  their  signatures  at  the  foot  of  the

endorsement of the Sub Registrar. These signatures were

contended to be enough to prove due attestation of the

Will.   It  was  held  that  mere  signatures  of  these  two

persons  appearing  at  the  foot  of  the  endorsement  of

registration could not be presumed to have been made as

attesting  witnesses  or  in  the  capacity  of  attesting

witnesses  and  absence  of  animo attestandi was

underlined.

35. This Court in H. Venkatachala Iyengar (supra) while

dilating on the statutory requisites of valid execution of a

Will,  observed  that  unlike  other  documents  this

testamentary instrument speaks from the death of  the

testator and by the time when it  is  produced before a

Court, the testator had departed from his temporal state

and is not available to own or disown the same. It was

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thus emphasised that this does introduce an element of

solemnity in the decision on the question as to whether

the document propounded is proved to be the last Will

and testament of the departed testator.  In this context, it

was emphasised that the propounder would be required

to  prove  by  satisfactory  evidence  that  (i)  the  Will  was

signed by the testator, (ii) he at the relevant time was in a

sound and disposing state of  mind, (iii)  he understood

the nature and effect of the dispositions, and that (iv) he

put his signature to the document of his own free will.  It

was observed that ordinarily when the evidence adduced

in support of  the Will  is disinterested, satisfactory and

sufficient to prove the sound and disposing state of the

testator’s mind and his signature as required by law, the

court would be justified in making a finding in favour of

the propounder signifying that he/she had been able to

discharge his/her onus to prove the essential facts.  The

necessity  of  removal  of  the  suspicious  circumstances

attendant  on  the  execution  of  the  Will,  however,  was

underlined as well.  That no hard and fast or inflexible

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rule can be laid down for the appreciation of the evidence

to this effect was acknowledged.

36.  That a propounder has to demonstrate that the Will

was  signed  by  the  testator  and  that  he  was  at  the

relevant time in a sound disposing state of mind and that

he understood the nature and effect  of  the  disposition

and  further  that  he  had  put  his  signature  to  the

testament on his own free will and that he had signed it

in  presence  of  two  witnesses  who  had  attested  it  in

presence and in the presence of each other, in order to

discharge his  onus to  prove due execution of  the said

document was reiterated by this Court amongst others in

Surendra Pal and Ors. (supra) It was held as well that

though on the proof of the above facts, the onus of the

propounder  gets  discharged,  there  could  be  situations

where  the  execution  of  a  Will  may  be  shrouded  by

suspicious  circumstances  such  as  doubtful  signature,

feeble  mind of  the testator,  overawed state  induced by

powerful and interested quarters, prominent role of the

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propounder, unnatural, improbable and unfair bequests

indicative of lack of testator’s free will and mind etc.  In

all such eventualities, the conscience of the Court has to

be  satisfied  and  thus  the  nature  and  quality  of  proof

must be commensurate to such essentiality so much so

to  remove any suspicion which may be entertained by

any  reasonable  and  prudent  man  in  the  prevailing

circumstances. It was propounded further that where the

caveator alleges undue influence, fraud and coercion, the

onus, however, would be on him to prove the same, and

on his  failure,  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.

37.  In  Jaswant  Kumar  (supra)  this  Court  held  that

suspicion  generated  by  the  distrustful  circumstances

cannot  be  removed  by  the  mere  assertion  of  the

propounder  that  the  Will  bears  the  signature  of  the

testator or that the testator was in a sound and disposing

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state of mind and memory when the Will was made or

that those like the wife and children of the testator, who

would  normally  receive  their  due  share  in  the  estate,

were disinherited because the  testator  might have  had

seen reasons for excluding them. It was underscored that

it  was  obligatory  for  the  propounder  to  remove  all

legitimate  suspicions  before  the  document  could  be

accepted as the last Will of the testator.   

38.  In Ravindra Nath Mukharji and Another (supra) this

Court entertained the view that the, witnesses to the Will,

if  interested  for  the  propounder  is  perceived  to  be  a

suspicious  circumstance,  the  same  would  lose

significance if  the  document  is  registered and the  Sub

Registrar does certify that the same had been read over

to the executor who on doing so admits the contents.  

39.  In Pentakota Satyanarayan and Others (supra) the

testator P. Mr. Ram Murthi had admitted the execution of

the Will involved. He, however, expired while the suit was

pending. The Will was registered and the signature of the

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testator was identified by two witnesses whereupon the

Sub Registrar had signed the document.  In this textual

premise, it was held that the signatures of the registering

officer  and  of  the  identifying  witnesses  affixed  to  the

registration  endorsement  did  amount  to  sufficient

attestation within the meaning of the Act.  It was held as

well that the endorsement of the Sub Registrar that the

executant had acknowledged before  him the execution,

did also amount to attestation.  The facts revealed that

the Will was executed before the Sub Registrar on which

the signature of the testator as well as signature and the

thumb impression of the identifying witnesses were taken

by the  said  authority,  whereafter  the  latter  signed  the

deed.  In general terms, it was observed that registration

of  the  Will  per  se  did  not  dispense  with  the  need  of

proving its execution and the attestation in the manner

as  provided  in  Section  68  of  the  1872  Act.  It  was

enunciated as well that execution consisted of signing a

document,  reading  it  over  and  understanding  and

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completion of all formalities necessary for the validity of

the act involved.

39.1  The  facts  as  obtained  in  this  decision  are

distinguishable from those in hand and are incomparable

on many counts.  No anology can be drawn from this case

to conclude that the testimony of AW 3 even if read with

that  of  AW  1  and  AW  5  can  sum  up  to  prove  valid

execution  and  attestation  of  the  Will  as  stipulated  by

Section 63 (c ) of the Act.

40.   Janki  Narayan  Bhoir  (supra)  witnessed  a  fact

situation where one of the attesting witnesses of the Will,

though  both  were  alive  at  the  relevant  time,  was

produced to prove the execution thereof.  The scribe of

the document was also examined. The attesting witness

deposed that he had not seen the other witness present

at the time of execution of the Will and further he did not

remember as to whether  he along with the latter  were

present either when the testator had put his signature on

the Will or that he had identified the person who had put

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the  thumb  impression  on  the  document.   The  issue

raised before this Court was that the evidence of the said

attesting witness had failed to establish the attestation of

the  Will  by  the  other  attesting  witness  who  though

available had not been examined and thus the Will was

not proved.  The contrary plea was that though Section

63 of the Act required attestation of a Will by at least two

witnesses, it could be proved by examining one attesting

witness  as  per  Section  68  of  the  1872  Act  and  by

furnishing other evidence as per the Section 71 thereof.

While dwelling on the respective prescripts of Section 63

of the Act and Sections 68 and 71of Act 1872 vis-à-vis a

document required by law to be compulsorily attested, it

was  held  that  if  an  attesting  witness  is  alive  and  is

capable of giving evidence and is subject to the process of

the Court, he/she has to be necessarily examined before

such  document  can  be  used  in  evidence.  It  was

expounded that on a combined reading of Section 63 of

the Act and Section 68 of the 1872 Act, it was apparent

that mere proof of signature of the testator on the Will

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was not sufficient and that attestation thereof was also to

be proved as required by Section 63 (c) of the Act.  It was,

however, emphasised that though Section 68 of the 1872

Act permits proof of a document compulsorily required to

be attested by one attesting witness, he/she should be in

a position to prove the execution thereof and if  it  is  a

Will, in terms of Section 63 (c) of the Act, viz, attestation

by  two  attesting  witnesses  in  the  manner  as

contemplated  therein.   It  was  exposited  that  if  the

attesting witness examined besides his attestation does

not prove the requirement of the attestation of the Will by

the  other  witness,  his  testimony  would  fall  short  of

attestation of the Will by at least two witnesses for the

simple  reason  that  the  execution  of  the  Will  does  not

merely mean signing of  it by the testator but connotes

fulfilling  the  proof  of  all  formalities  required  under

Section 63 of the Act. It was held that where the attesting

witness examined to prove the Will under Section 68 of

1872 Act fails to prove the due execution of the Will, then

the other available attesting witness has to be called to

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supplement  his  evidence  to  make  it  complete  in  all

respects.   

41.  Qua Section 71 of 1872 Act, it was held to be in the

form of a safeguard to the mandatory provision of Section

68 to cater to a situation where it is not possible to prove

the  execution  of  the  Will  by  calling  the  attesting

witnesses though alive i.e. if the witnesses either deny or

do not recollect the execution of the Will. Only in these

contingencies  by  the  aid  of  Section 71,  other  evidence

can be furnished.  It was further clarified that Section 71

of Act 1872 would have no application to a case where

one  attesting  witness  who  alone  had  been  summoned

fails  to  prove  the  execution  of  the  Will  and  the  other

attesting witness though available to prove the execution

of the same, for reasons best known, is not summoned

before the Court.  

42.   This  Court  underlined that  Section 71 of  the Act

1872  was  meant  to  lend  assistance  and  come  to  the

rescue of a party who had done his best, but driven to a

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state of helplessness and impossibility and cannot be let

down without any other opportunity of proving the due

execution  of  the  document  by  other  evidence.  That,

however, Section 71 cannot be invoked so as to absolve

the party of  his obligation under Section 68 read with

Section 63 of the Act and to liberally allow him, at his will

or  choice,  to  make available  or  not,  necessary witness

otherwise available and amenable to jurisdiction of the

Court,  was  highlighted  in  emphatic  terms.  That  no

premium upon such omission or lapse so as to enable

him to give a go-bye to the mandates of law relating to

proof  of  execution of  a  Will,  as  contemplated by these

statutory  provisions,  was  precisely  underlined.   In  the

facts  and  circumstances  of  that  case,  as  the  second

attesting  witness  though  available  had  not  been

summoned, the benefit of Section 71 of Act 1872 was not

extended.  The Will was thus held to be not proved for the

failure of the attesting witness so produced, to testify as

per the ordainment of Section 63 (c) of the Act.  

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43.  In M. B. Ramesh (dead) by LRS (supra), one Smt.

Nagammanni had executed a Will.  One of the attesting

witnesses  P.  Basavaraje  Urs,  in  his  evidence,  stated

about the presence of  the other witness (naming him),

the  testatrix,  himself  and  one  Sampat  Iyengar  to  be

present when the Will was written.  He deposed further

that one Mr. Narayan Murthi was the scribe. This witness

proved that  the  Will  was signed by  Smt.  Nagammanni

and  that  he  had  signed  the  document  too  in  her

presence.   On  a  consideration  of  the  totality  of  the

circumstances  emerging  from  the  narration  of  the

attesting witness, this Court held that the omission on

the  part  of  this  witness  to  specifically  state  about  the

signature of the other witness on the Will in presence of

the testatrix did amount to his failure to recollect the said

fact  and  thus  the  deficiency  could  permissibly  be

replenished by the aid of Section 71 of the Act 1872.  In

no uncertain terms, this Court did hold that the issue of

validity of the Will was to be considered in context of the

attendant singular facts.

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44.  The legal  propositions adumbrated by the judicial

pronouncements, adverted to hereinabove, do not admit

of any exception. However, these are of no avail  to the

appellant herein in the conspectus of present facts.  The

evidence of the witness AW 1, AW 3 and AW 5 does not

exhibit either denial of the execution of the Will or their

failure to recollect the said phenomenon and thus, does

not attract the applicability of Section 71 of the Act 1872.

45.  A Will as an instrument of testamentary disposition

of  property  being  a  legally  acknowledged  mode  of

bequeathing a testator’s acquisitions during his lifetime,

to be acted upon only on his/her demise, it is no longer

res  integra,  that  it  carries  with  it  an  overwhelming

element  of  sanctity.   As  understandably,  the

testator/testatrix,  as  the  case  may  be,  at  the  time  of

testing  the  document  for  its  validity,  would  not  be

available, stringent requisites for the proof thereof have

been statutorily enjoined to rule out the possibility of any

manipulation.   This  is  more so,  as  many a  times,  the

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manner of  dispensation is  in stark departure from the

prescribed canons of devolution of property to the heirs

and legal representatives of the deceased.  The rigour of

Section 63 (c) of the Act and Section 68 of 1872 Act is

thus befitting the underlying exigency to secure against

any self serving intervention contrary to the last wishes of

the executor.

45.1  Viewed in premise, Section 71 of the 1872 Act has

to be necessarily  accorded a strict  interpretation.   The

two contingencies permitting the play of this provision,

namely, denial or failure to recollect the execution by the

attesting  witness  produced,  thus  a  fortiori  has  to  be

extended  a  meaning  to  ensure  that  the  limited  liberty

granted  by  Section  71  of  1872  Act  does  not  in  any

manner efface or emasculate the essence and efficacy of

Section 63 of the Act and Section 68 of 1872 Act.  The

distinction  between  failure  on  the  part  of  a  attesting

witness to prove the execution and attestation of a Will

and  his  or  her  denial  of  the  said  event  or  failure  to

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recollect the same, has to be essentially maintained. Any

unwarranted  indulgence,  permitting  extra  liberal

flexibility  to  these  two  stipulations,  would  render  the

predication of Section 63 of the Act and Section 68 of the

1872 Act, otiose.  The propounder can be initiated to the

benefit of Section 71 of the 1872 Act only if the attesting

witness/witnesses, who is/are alive and is/are produced

and in clear terms either denies /deny the execution of

the document or cannot recollect the said incident.  Not

only, this witness/witnesses has/have to be credible and

impartial,  the  evidence  adduced  ought  to  demonstrate

unhesitant  denial  of  the execution of  the document or

authenticate  real  forgetfulness  of  such  fact.   If  the

testimony evinces a casual account of the execution and

attestation  of  the  document  disregardful  of  truth,  and

thereby fails to prove these two essentials as per law, the

propounder  cannot  be  permitted  to  adduce  other

evidence under cover of Section 71 of the 1872 Act. Such

a  sanction  would  not  only  be  incompatible  with  the

scheme of Section 63 of the Act read with Section 68 of

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the  1872  Act  but  also  would  be  extinctive  of  the

paramountcy and sacrosanctity thereof, a consequence,

not legislatively intended. If the evidence of the witnesses

produced by the propounder is inherently worthless and

lacking in credibility, Section 71 of Act 1872 cannot be

invoked to bail him (propounder) out of the situation to

facilitate  a  roving  pursuit.  In  absence  of  any  touch of

truthfulness  and  genuineness  in  the  overall  approach,

this provision, which is not a substitute of Section 63 (c )

of  the Act  and Section 68 of  the  1872 Act,  cannot be

invoked to supplement such failed speculative endeavour

45.2  Section 71 of the 1872 Act, even if assumed to be

akin to a proviso to the mandate contained in Section 63

of the Act and Section 68 of the 1872 Act, it has to be

assuredly  construed  harmoniously  therewith  and  not

divorced  therefrom  with  a  mutilative  bearing.   This

underlying  principle  is  inter  alia  embedded  in  the

decision of this Court in the Commission of Income Tax,

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Madras  Appellant  Versus  Ajax  Products  Limited

Respondent AIR 1965, Supreme Court 1358.

46.  The materials on record, as a whole, also do not, in

our  comprehension,  present  a  backdrop,  in  which,  in

normal circumstances, the testator would have preferred

the appellant to be the legatee of his property as set out

in the Will,  Ex. A-1, by denying his wife,  children and

grand children  who were  alive  and with  whom he  did

share a very warm affectionate and cordial relationship.

Viewed in this context, the bequest is exfacie unnatural,

unfair  and improbable  thus reflecting on the  testator’s

cognizant, free, objective and discerning state of mind at

the  time  of  the  alleged  dispensation.  The  suspicious

circumstances  attendant  on  the  disposition,  in  our

opinion,  do  militatively  impact  upon  the  inalienable

imperatives of solemnity and authenticity of any bequest

to be effected by a testamentary instrument.

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47.   In  the  wake  of  the  determinations  made  herein

above,  we  are  of  the  unhesitant  opinion  that  the

challenge laid in the instant appeal lacks in merit.  

48.  The High Court, in our estimate, has appropriately

appreciated the law and the facts in the right perspective

and  the  impugned  decision  does  not  call  for  any

interference.  The appeals are dismissed.

49.   No cost.   

……………………..J. (Kurian Joseph)

……………………..J. (Amitava Roy)

      New Delhi        Dated: May 01, 2015