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TMI Blog2007 (5) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... h known as Bharati Math at Puri. In the Will, she disclosed her profession to be Singer of Bhajans and Kirtans . It is not in dispute that the first respondent was a complete stranger to the family. He is a businessman. His father was one of the disciples of late Taponidhi Ramakrishna Bharati Goswamy, who had founded the Math wherein the testatrix was living. 3. A deed of sale was also executed by the said Sarajumani Dasi in favour of advocate Surendra Panda of Puri on the same day. The Will is said to have been scribed by one Banabehari Upadhyaya (PW-9), an advocate's clerk. He as well as one Chandramani Das Mohapatra who are said to be the attesting witnesses thereto also identified the testatrix before the Registering Officer. Respondent No. 1 obtained the original Will from the Office of the Registering Authority on 30.1.1982. 4. As noticed hereinbefore, Sarajumani Dasi expired on 5.6.1983. In 1986, an application was filed by the first respondent in the court of the learned District Judge, Puri for grant of Letters of Administration in respect of the alleged Will with a copy of the Will annexed, in terms of Section 278 of the Indian Succession Act. Respondent No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person attested the Will and the sale deed.... ... I scribed whatever was dictated by Sri Panda without understanding the meaning or purport.... I did not disclose before the Sub-Registrar or before any body that I identified Sarjumani Dasi without knowing her or attested her L.T.I. even though her L.T.I. were not affixed in my presence.... 11. In his deposition, P.W.4-Purnachandra Rath (An Advocate) stated: Thereafter on 15.1.82, Sarajumani again came to the Bar Association and met me there. Brajakishore Nanda (P.W.1 - Plaintiff) and his father Sanmajaya Nanda (not examined) accompanied the Mata. She expressed before me that she would execute the Will and also the sale deed. On her instruction, I made a gist of the Will and asked Banabehari Upadhyaya to scribe the same.... The scribe read over and explained the contents of the Will to Sarajumani and she acknowledged the same to be true and correct. When Sarajumani affixed her L.T.I. on the Will, myself, Banabehari Upadhyaya, (P.W.9) advocate Sri Surendra Panda and Chandramani Das Mohapatra and Sanmajaya Nanda were present.... I am attesting witness to the will.... I endorsed a certificate in the Will to the effect that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andra Rath, as noticed hereinbefore, gave a completely different picture of the stay. According to him on 15.1.1982 the testatrix expressed her desire to execute a Will as also a sale deed, whereupon he made a gist of the contents of the Will and then asked P.W.9 to scribe it. No draft of the Will was prepared although drafts of the sale deeds were prepared. Although in his deposition P.W.-4 contended that he had endorsed a certificate in the Will to the effect that the Will was written by his clerk in his office on his direction, the certified copy of the Will did not show the same. A certificate to that effect appeared in the Xeroxed copy of the Will which was brought on record and marked at Ext.-13/a, but such a certificate did not find place in the certified copy of the Will, and thus, no reliance can be placed thereupon. 16. The High Court in its judgment proceeded on the basis that P.W.-4 was also a witness to the execution of the Will by the testatrix and thus would come within purview of the definition of the term 'attesting witness'. 17. So far as the deposition of P.W.7-Surendra Panda is concerned, he contradicts P.W.-9 as according to him he was not present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. He is supposed to know the importance of attestation. If he intended to be an attesting witness, he could have done so. 21. It was also not necessary for the appellants to confront him with his signature in the Xeroxed copy of the Will, inasmuch as the same had not appeared in the certified copy. Execution of a Will must conform to the requirement of Section 63 of the Succession Act, in terms whereof a Will must be attested by two or more witnesses. Execution of a Will, therefore, can only be proved in terms of Section 68 of the Evidence Act. 22. P.W.-9, as noticed hereinbefore in his deposition, stated that Sarajumani Dasi did not put her thumb impression in his presence on the Will at the time of its execution. Whether the same would amount to denial of the execution of a Will even within the meaning of Section 71 of the Indian Evidence Act is the question. 23. Section 71 of the Evidence Act reads as under: 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. 24. He neither denies the execution nor has failed to recollect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndorsement made therein. The Kerala High Court, furthermore, reassured itself from the other evidence that the testator had expressed his desire to execute the Will and in fact wanted to assure himself that no quarrel should arise between his sons after his death regarding the Will or his signature and only for that purpose he got it registered. It was furthermore noticed that the Sub-Registrar who had registered the document, on his examination, affirmed that the document was read over to the testator and the testator acknowledged his signature in the Will and also signed in token of presenting the Will before the Sub-Registrar. The Sub-Registrar had also signed it as one of the witnesses. When a Sub-Registrar had signed the document as a witness and after that D.W. -5 had signed as an attesting witness upon execution of the document by the testator, according to the High Court the circumstances of the case were sufficient to come to the conclusion that there was proof of the due compliance of the formalities required by Section 63 of the Succession Act in that case . 28. We may notice that this Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam [2002]SUPP5SCR175 laid down th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l will was lost. 30. Loss of the original Will was, thus, not satisfactorily proved. 31. A document upon which a title is based is required to be proved by primary evidence, and secondary evidence may be given under Section 65(c) of the Evidence Act. The said clause of Section 65 provides as under: When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. Loss of the original, therefore, was required to be proved. 32. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the original Will, beyond all reasonable doubt. His testimony in that behalf remained uncorroborated. 33. Furthermore, secondary evidence, inter alia, could be led by production of a certified copy given in terms of the provisions of the Indian Registration Act. In support of the proof of the Will, purported Xerox copy and a certified copy thereof have been produced. In the Xerox copy, an endorsement has been made by an advocate that the executant was his client and it was written by his clerk in his off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Will. While registering the Will, the Registering Officer has endorsed: Execution is admitted by the above Sarajumani Dasi who is identified by Sri Banabihari Upadhyay S/o Harihar Upadhyaya, Advocate's clerk of Bhubaneswar . 38. In Dharam Singh v. Aso and Anr. AIR1990SC1888 , this Court held: 2. The two attesting witnesses did not support the execution of the will. The trial court relied upon the statement of the registering authority and on the basis of decisions of the Lahore and Punjab and Haryana High Courts found that the will had been proved. The lower appellate court reversed the decision by relying upon two decisions of this Court in M.L. Abdul Jabhar Sahib v. H.V. Venkata Sastri Sons and Seth Beni Chand v. Kamla Kunwar. 3. We have examined the record and are satisfied that the appellate court and the High Court were right in their conclusion that the Registrar could not be a statutory attesting witness. Therefore, the conclusion that the will had not been duly proved cannot be disturbed. 39. The said witness did not know the testatrix personally. Even her parentage was not asked for and inquired into. He was examined eight years after the registr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olation/variance in the Xerox copy of the Will vis-`-vis certified copy thereof. Serious consideration was required to be bestowed on the contention of the appellants that thumb impressions of the testatrix on different pages of the Xerox copy did not tally. No effort was made to compare the thumb impression appearing on the Xerox Copy with the thumb impression appearing on other admitted documents. Non-production of the original Will stating that the Will got lost, gives rise to an inference that it might have been that the Will did not contain the thumb impression of the testatrix. The testatrix was an old and ill lady. She had no independent adviser in the matter of the execution of the Will. On the other hand, the plaintiff/respondent No. 1 and his father being disciple of her Guru were in a position to dominate her mental process. 45. Respondent No. 1 was a student at the relevant time. His father had taken an active part in the entire process in registering and culmination of the Will in favour of his son. There are materials on record to show that although sufficient time had been granted for examination of the other attesting witnesses, Chandramani Das Mohapatra was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suspicious circumstances surrounding the execution thereof is not of much significance. The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision. 49. Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and Ors., this Court held: Section 63 of the Indian Succession Act lays down the mode and manner of execution of an unprivileged Will. Section 68 of the Indian Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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