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TMI Blog2001 (8) TMI 1413X X X X Extracts X X X X X X X X Extracts X X X X ..... had appended their signatures at the foot of the endorsement by the Sub-Registrar, were not attesting witnesses as their signatures were not put animo attestandi. In an earlier decision of the Calcutta High Court in Abinash Chandra Bidvanidhi Bhattacharya v. Dasarath Malo : I.L.R 56 Cal.598, it was held that a person who had put his name under the word scribe was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a scribe. In the similar vein, the Privy Council in Shiam Sunder Singh v. Jagannath Singh (54 M.L.J. 43) held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees. In this context, reference may be made to the decision of this Court in M.L. Abdul Jabhar Sahib v. H.V. Venkata Sastri & Sons & Ors. (1969 (3) SCR 513) wherein this Court upon reference to Section 3 of the Transfer of Property Act has the following to state: It is to be noticed that the word attested, the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also equally well- settled that in the event of there being circumstances surrounding the execution of the will, shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence. In this context, reference may be made to a decision of this Court in Seth Beni Chand (since dead) by LRs v. Smt. Kamla Kunwar and others (1976 (4) SCC 554). As regards the true legal position in the matter of proof of wills, we rather feel it tempted to incorporate the succinct expression of law, in extenso, even though rather longish in nature, by Gajendragadkar, J. in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma & Others (1959 Supp. (1) SCR 426). The learned Judge had the following to state: It is well-known that the proof of wills presents a recurring topic for decision in courts and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of attestation prescribed by s.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. Having discussed the basic law on the subject as above and before however adverting to the contextual facts we also deem it fit to record the statutory provision as engrafted in the Indian Succession Act as regards the execution of the wills. Section 63 of the Act of 1925 has three several requirements as regards the execution of will viz. (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. (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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t contended that the suit properties have never been under the possession and enjoyment of Amsaveni and Attiammal. As a matter of fact, it has been the defendants specific case that on 6.3.1981, the plaintiffs have trespassed into the suit property and have stored their properties on the pathway in the absence of the respondents. There was, as a matter of fact, an assertion of a forceful trespass and occupation of the plaintiffs being wrongful. The sale deed though executed and registered in favour of the plaintiffs, are all false and fictitious documents, since the vendor has no right to sell the property to the plaintiffs. Diverse issues were raised in the suit No.364 of 1981 wherein presently we are concerned with one single issue viz., whether WILL dated 29.1.1969 is a true one and whether it is valid and has a binding effect? Incidentally, subsequent to the initiation of the suit as above in 1981 Ayyasami also filed another original suit being O.S. No.603 of 1982 having a prayer inter alia for a relief of permanent injunction restraining the respondents Ganesan and Kamalam in any way interfering with the peaceful enjoyment of the suit property by the plaintiff, obviously, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge further recorded, that one of the attesting witnesses by name Govindarajulu is also very old and not keeping good health and the other witness Subbiah Gounder died in January 1993 and the appellant could not examine them only on account of the reasons as noticed above. On the factual score, however, the counter affidavit on record stands rather significant, which records as below: when the petitioners were informed of the necessity to examine the attestors and several adjournments were obtained to take steps therefore and the petitioners preferred not to examine them. It is therefore clear that the present averment of the petitioners are all false and contrary to those in the said complaint filed within the ten months after the date of this affidavit. The petitioner failed to get the attestors and did not even summon them in the Lower Court. Even if they had failed to appear on summons, coersive steps could have been taken as mentioned in the judgment of the Lower Court. On the contrary, the petitioners were content with explaining the non-examination of the attestors. Therefore, there is no justification to grant the petitioner the relief prayed for by them now. The insuffici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Turning attention on to the issue of additional evidence, be it noted that Order 41 Rule 27 prescribes specific situation where production of additional evidence may otherwise be had. For convenience sake, Order 41 Rule 27 reads as below: 1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit was instituted in the year 1981 and the decree therein was passed in 1983. The first appeal was filed before the High Court in April, 1983 but the application for permission to adduce additional evidence came to be made only in August, 1993. Needless to record that the courts shall have to be cautious and must always act with great circumspection in dealing with the claims for letting in additional evidence particularly, in the form of oral evidence at the appellate stage and that too, after a long lapse of time: In our view, a plain reading of Order 41 Rule 27 would depict that the rejection of the claim for production of additional evidence after a period of 10 years from the date of filing of the appeal, as noticed above, cannot be termed to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted. The learned Trial Judge while dealing with the matter has, as a matter of fact, very strongly commented upon the lapse and failure on the part of the plaintiffs even to summon the attestors to the will and in our view contextually, the justice of the situation does not warrant any interference. The attempt, the High Court ascribed it, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either- (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary. As regards the requirement of attestation, Halsburys Laws of England has the following to state: The testators signature must be made or acknowledged by him in the presence of two or more witnesses present at the same time. Each witness must then either attest and sign the will or acknowledge his signature, in the testators presence. The testators complete signature must be made or acknowledged when both the attesting witnesses are actually present at the same time and each witness must attest and sign, or acknowledge, his signature after the testators signature has been so made or acknowledged. Although it is not essential for the attesting witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aregis. Be that as it may, in common parlance an attribute of scribe as a mere writer as noted above, does not stretch the matter further. In the contextual facts, while the writer did, in fact, subscribe his signature but the same does not under-rate the statutory requirement of attestation as more fully described herein before. True it is, that strenuous submissions have been made in support of the appeal that attesting witnesses have no other role to play but to subscribe their signatures in order to prove the genuineness of the will and that in fact, when the scribe signs the will, the same can be read as attestation. Needless to record however that the scribe Arunachalam was examined and it is on this score the learned advocate contended that the evidence of an attestor thus can be said to be on record so as to make the document namely the will in the instant case thus otherwise in accordance with law. The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of same status as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document, required attestation (admittedly in the case of a wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing witness. The ordinary meaning of the word would show that an attesting witness should be present and see the document signed by the executant, as he could then alone vouch for the execution of the document. In other words, the attesting witness must see the execution and sign. Further, attestation being an act of a witness, i.e., to testify to the genuineness of the signature of the executant, it is obvious that he should have the necessary intention to vouch it. The ordinary meaning of the word is thus in conformity with the definition thereof under the Transfer of Property Act before it was amended by Act 27 of 1926. Before that amendment, admission of execution by the executant to a witness who thereupon puts his signature cannot make him an attestor properly so called, as he not being present at the execution, cannot bear witness to it; a mere mental satisfaction that the deed was executed cannot mean that he bore witness to execution. (4) After the amendment of S.3 by Act 27 of 1926, a person can be said to have validly attested an instrument, if he has actually seen the executant sign, and in a case where he had not personally witnessed execution, if he has received fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re writer of the will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to the proof of due attestation unless the situation is so expressed in the document itself this is again however not the situation existing presently in the matter under consideration. Some grievance was made before this court that sufficient opportunity was not being made available, we are however, unable to record our concurrence therewith. No attempt whatsoever has been made to bring the attesting witnesses who are obviously available. It is on this count that the learned advocate in support of the appeal very strongly contended that there is existing a responsibility on to the law courts to deal with the matter having due regard to the concept of justice. Technicalities, it has been contended there may be many but would that sub-serve the ends of justice: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... execution of the WILL, Advocate G.M.Nathan was residing at Thomas Street. At that time Masane Gowder was residing at the same place after one house of Advocates home. Before the preparation of the WILL I had been to his house and discussed with him about the details and he has stated the details. At that time Masane Gowder Mental and Physical status were found good. After writing the Ex.A1. the Will, I have read out the same to him, and he had stated that all were correct. Then in my presence Masane gowder had affixed his thumb impression in each page. The affixing of Thumb impression by Masane Gowder in Ex.A.I WILL had been witnessed by attestor Subbaiah, Govindaraju and myself. The signing of signature for witness by us, was eyewitnessed by Masane Gowder. After the Ex.A1. will had been prepared and signed I had handed over the WILL to Masane Gowder. In cross examination, the scribe Arunachalam stated as below: I am engaged in profession of DOCUMENT WRITING from 1966 onwards. I do not know Masane Gowder before the introduction by Advocate G.M. Nathan. I have not seen or verified any TITLE DEEDS before writing the Ex.A1 WILL. The said Masane Gowder had stated all the details for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and others (AIR 1921 Calcutta 208) wherein a Bench decision of the Calcutta High Court was pleased to record as below: According to the plaintiffs case, there were two attesting witnesses Hawai Bashunia and Kali Nath Sircar. As to Hawai Bashunia, there is no dispute. He was present when the document was executed and signed as an attesting witness. Kali Nath Sircar was the writer of the bond. He signed the bond in two places but not in the place set apart for the signature of witnesses. It is found by the lower appellate Court that he wrote his name as a writer and not as an attesting witness but that he was present at the time of the execution of the deed and actually saw it. Whether this amounted to attestation within the meaning of Section 59 of the Transfer of Property Act, is a point on which different High Courts have held differently. There are decisions of the Allahabad High Court and the Patna High Court in favour of the appellant in Badri Prasad v. Abdul Karim(1913 (35) All.254) and Ram Bahadur Singh v. Ajodhya Singh (1916 (20) C.W.N. 699). But this Court has held in the case of Raj Narain Ghose v. Abdur Rahim (1901 (5) C.W.N.454, that a person who is present and witnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erate they held the pen while he put their cross marks on the document and wrote their names opposite their respective cross marks, and that after all this had been done he wrote his name and the description writer on the left-hand side of the document. In cross-examination he stated that he could not give this evidence in reference to this particular document but that he gave his evidence as part of his invariable practice, his profession in life being the profession of a petition writer. He says that invariably, when he drew up documents which were to be executed by illiterate persons, he adopted this very procedure. The learned District Judge has discarded his evidence upon the ground that his evidence was not really relevant because it was not evidence in regard to the execution of this particular document but evidence in regard to his practice in the writing and executing of documents. But, to my mind, this makes his evidence of more value in this particular case, because it is to the effect that his invariable practice was to sign documents not merely as the writer but by way of testimony of the fact that he had seen the documents executed; and so far as this particular case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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