Supreme Court of India

JANKI NARAYAN BHOIRversusNARAYAN NAMDEO KADAM

Citation: 2002 INSC 551
Decided: 17 December 2002
Disposal: Dismissed
Bench: DORAISWAMY RAJU

Holding

A Will is not proved unless the examined attesting witness can satisfy the attestation of the other required witness; the scribe is not an attesting witness and Section 71 cannot be invoked, so the High Court's reversal was erroneous.

Summary

The respondent filed a suit for possession of property on the basis of a Will that was signed by two attesting witnesses. At trial only one attesting witness and the scribe were examined, while the second witness, though alive, was not called. The trial court accepted the Will, but the District Judge reversed, holding that the Will was not proved because only one attesting witness was examined. The High Court reversed again, holding that examining one attesting witness was sufficient and that the scribe could be treated as an attesting witness. The Supreme Court held that the sole examined attesting witness failed to establish the attestation of the other witness, the scribe is not an attesting witness, and Section 71 of the Evidence Act does not apply, thereby restoring the lower appellate court's decision and dismissing the suit.

Issues considered

Whether a Will required to be attested by two witnesses under Section 63 of the Succession Act can be proved by examining only one attesting witness under Section 68 of the Evidence Act.
Whether Section 71 of the Evidence Act can be invoked when the other attesting witness is available but not examined.
Whether the scribe of a Will can be treated as an attesting witness for the purpose of proving execution.

Legislation cited

Indian Evidence Act, 1872s. 114, s. 68, s. 71
Indian Succession Act, 1925s. 63

Subjects

Will attestationSection 63 Succession ActSection 68 Evidence ActSection 71 Evidence ActProof of executionscribe as witnesscivil possession suitsuccession law

Judgment

JANK! NARAYAN BHOIR •A
v.
NARA YAN NAMDEO KADAM

DECEMBER 17, 2002

[DORAISWAMY RAJU AND SHIVARAJ V. PATIL, JJ.] B

Succession Act, 1925/Evidence Act, 1872- Section 63/Sections 68 and
71-Proving of execution of Will-Evidence of only a/testing witness and that
ofthe scribe-Non summoning of another a/testing witness, though available- C
Held, evidence of only attesting witness does not satisfY mandatory requirements
of Section 68-Section 71 has no applicability in such case-It is only a
permissive and enabling provision.

Respondent filed a suit for possession of the suit properties on the
basis of a Will. The Will was signed by two attesting witnesses. During D
trial one of the attesting witnesses and the scribe of the Will was examined,
while second attesting witness was not examined. Trial court accepted the
Will oli the basis of the evidence and decreed the suit. In appeal District
Judge reversed the judgment of trial Court holding that the respondent
had failed to prove the execution of the Will as only one attesting witness
was examined and his evidence was not sufficient to establish that the Will E
was duly executed. In second appeal High Court held that it was not
necessary to examine both the attesting witnesses and in case one attesting
witness examined. was unable to remember whether the other attesting
witness was present and had signed, it was open to the court to rely upon
surrounding circumstances as well as the testimony of other witnesses; and F
that the scribe of the Will also could have been treated as an attesting
witness as he had also signed the Will.

In appeal to this court, appellant contended that the Will in question
was not proved as required by law having regard to Section 63 of
Succession Act, I 925 read with Section 68 of Evidence Act, 1872 as G
attestation of the Will by two witnesses was not established; that High
Court had committed an error in treating the scribe as an attesting witness
when he did not sign as animo al/estendi; that the evidence of the one
attesting witness examined did not establish attestation of the Will by
another attesting witness; that the other attesting witness though available
175 II
F6 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A was not examined; and that the High Court committed and error in setting
aside the judgment of first appellate court, which was based on proper
appreciation of evidence, in the absence of any substantial question of law.

Respondent contended that although Section 63 of Succession Act
requires attestation of a Will at least by two witnesses but the Will could
B be proved by examining one attesting witness as per Section 68 of Evidence
Act and by leading other evidence as per Section 71 of Evidence Act.

Dismissing the appeal, the Court

HELD: I. On a combined reading of Section 63 of the Succession
C Act, 1925 with Section 68 of the Evidence Act, 1872 it appears that a
person propounding the Will has got to prove that the Will was duly and
validly executed. That cannot be done by simply proving that the signature
on the Will was that of the testator but must also prove that attestations
were also made properly as required by clause (c) of Section 63 of the
D Succession Act. Section 68 gives a concession to those who want to prove
and establish a Will in a Court of law by examining at least one attesting
witness even though Will..has to be attested at least by two witnesses
mandatorily under Section 63 of the Succession Act. If one attesting witness
can prove execution of the Will in terms or clause (c) of Section 63, viz.,
attestation.by two attesting witnesses in the manner contemplated therein,
E the examination of other attesting witness examined, in his evidence has
to satisfy the attestation of a Will by him and the other attesting witness
in order to prove there was due execution of the Will ..If the attesting
witness examined besides his attestation does not, in his evidence, satisfy
the requirements of attestation of the Will by other witness also it falls
F short of attestation of Will at least by two witnesses for the simple reason
that the execution of the Will does not merely mean the signing of it by
the testator but it means fulfilling and proof of all the formalities required
under Section 63 of the Succession Act. Where one attesting witness
examined to prove the Will under Section 68 of the Evidence Act fails to
prove the due execution of the Will then the other available attesting
G, witness
, has to be called to supplement his evidence to make it complete in
all respects. Where one attesting witness is examined and he fails to prove
the attestation of the Will by the other witness there will be deficiency in
meeting the mandatory requirements of Section 68 of the Evidence Act.
1181-G; 182-C; 182-E-FJ

H 2. In the facts of the case, it is evident that only one attesting witness
JANKI NARAYAN BHOIR v. NARAYAN NAMDEO KADAM 177

examined in the case, did not prove the execution of the Will inasmuch as A
he did not prove the attestation of the Will by the other attesting witness
who though available was not examined. The evidence of the only attesting
witness, does not satisfy the mandatory requirements of Section 68 of the
Evidence Act. It cannot be said that the evidence of other witnesses,
namely, that of the respondent and the scribe could be considered under
Section 71 of the Evidence Act. Section 71 has no application when the B
one attesting witness, who alone has been summoned, has failed to prove
the execution of the Will and other attesting witness though available has
not been examined. When the document is not proved as mandatorily
required under Section 68 of the Evidence Act, the provision of Section
71 of the Evidence Act, which is permissive, and enabling in certain C
circumstances does not help the respondent. [184-A-BI

Mt. Manki Kaur v. Hansraj Singh and Ors., AIR (1938) Patna 301,
disapproved.

Vishnu Ramkrishna and Ors. v. Nathu Vithal and Ors., AIR (1949) D
Born. 266, referred to.

5. In the instant case, it was not established that the two witnesses
attested the Will. The High Court committed a serious error in reversing
the judgment and decree of the first appellate court on a finding of fact,
which was based on proper and objective appreciation of evidence. The E
High Court was also wrong in treating the scribe of the Will, as an attesting
witness without any basis. Further, the High Court while reversing the
judgment and decree of the first appellate court did not indicate as to any
substantial question of law that arose for consideration between the parties
to deprive the suit properties to the only daughter of the deceased.
F
1185-A-B)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11194 of
1995.

From the Judgment and Order dated 26. I 0.1994 of the Bombay G
High Court in S.A. No. 409 of 1985.

Narayan N. Keswani, Ram Lal Roy and R.N. Keswani, for the Appellant.

Jay Savla, Ms. Meenakshi Ogra, Jana Kalyan Das (N.P.), for the
Respondent.
H
178 SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.

A The Judgment of the Court was delivered by

SHIVARAJ. V. PATIL J. This appeal by special leave is by the
defendant questioning the validity and correctness of the impugned judgment
and decree passed by the High Court in the second appeal. The respondent
herein filed the suit for possession of the suit properties comprised of
B agricultural land and a house as owner under the Will said to have been
executed by Honaji Dama Kadam. The trial court, accepting the Will on the
basis of evidence placed on record, decreed the suit. The District Judge in the
Regular First Appeal set aside the decree passed by the trial court. The High
Court in the second appeal by the impugned judgment and decree set aside
C the judgment of the first appellate court and restored the judgment and decree
passed by the trial court.

The contentions urged by the learned counsel for the appellant were
that the Will in question was not proved· as required by law, having regard
to Section 63 of Indian Succession Act read with Section 68 of the Indian
D Evidence Act, 1872 the attestation of Will by two witnesses was not
established; the High Court committed an error in treating the scribe as an
attesting witness when he did not sign as animo allestendi. The evidence of
the one attesting witness examined does not establish the attestation of the
wm by another attesting witness; the other attesting witness though available,
was not examined; the High Court committed a serious error in setting aside
E the judgment of the first appellate court which was based on proper
appreciation of evidence in the absence of any substantial question of law
· that arose for consideration.

On the other hand, the learned counsel for respondent urged that although
F Section 63 of the Succession Act requires attestation ofa Will at least by two
witnesses but the Will could be proved by examining one attesting witness
as per Section 68 of the Evidence Act and by leading other evidence as per
Section 71 of the Evidence Act. He fairly conceded that the scribe was not
and could not be treated as an attesting witness in this case.

G We have carefully considered the respective contentions urged by the
learned coun.sel for the parties.

The appellant is the only daughter of Honaj i Dama Kadam (deceased).
The respondent is the son of cousin brother of said Honaji Dama Kadam. The
respondent is claiming the suit properties on the basis of the Will dated
H 23.10.1975, said to have been executed by the deceased Honaji Dama Kadam.
JANKI NARAYAN BHOIR v. NARAYAN NAMDEO KADAM [PATIL, J.] 179

The High Court, by the impugned judgment, set aside the judgment and A
decree of the first appellate court holding that the Will was duly established
and restored the decree passed by the trial court. The District Judge on
appreciating the evidence placed on record had held that the respondent
failed to prove the execution of the Will; the respondent examined only one
attesting witness and his evidence was not sufficient to establish that the Will
was duly executed; in _that view reversing the decree of the trial court dismissed
B
1 the suit filed by the respondent. One Duttatray Raikar was .the scribe of the
Will. Ramkrishna Wagle and Prabhakar Sinkar were the attesting witnesses.
During the trial the respondent, Raikar, the scribe, and Prabhakar Sinkar, one
of the attesting witnesses, were examined. Prabhakar Sinkar, the attesting
witness, in his deposition stated that he did not know whether other attesting c
witness Ramkrishna Wagle was present in the house of the respondent at the
time of execution of the Will. He also stated that he did not remember as to
whether himself and Raikar were present when he put his signature. He did
not see witness Wagle at that time; he did not identify the person who had
put thumb impression on the Will. The scribe Raikar in his evidence stated
that he wrote th~ Will and he also stated that he signed on the Will Deed as D
a scribe. He further stated that attesting witnesses, namely, Wagle and
Prabhakar Sinkar are alive. The High Court took the view that though Wagle,
the other attesting witness, was not examined but his signature on the Will
was not disputed; both the respondent and Raikar deposed that Wagle and
Sinkar had signed the Will as attesting witnesses; in these circumstances the E
evidence of Raikar should have been accepted. The High Court was of the
opinion that it was not necessary to examine both the attesting witnesses and
in case one attesting witness examined was unable to remember whether the
other attesting witness was present and had signed, then it was open to the
court to rely upon the surrounding circumstances as well as the testimony of
other witnesses. The High Court also took the view that though Raikar had F
written down the Will he had also signed it and he could have been treated
as an attesting witness as he had also signed the Will. Thus, the High Court
was of the opinion that the Will was proved and the District Judge was wrong
in reversing the judgment and decree of the trial court.

At the hearing the learned counsel for the respondent fairly submitted
G
.... that Raikar was only the scribe and he was not the attesting witness. Even
./ looking to the evidence of Raikar himself it is clear that he gave evidence as
the scribe. There is nothing on record to indicate that he had any intention
to attest the Will. The attesting witness Sinkar has not stated that the other
, attesting witness Wagle attested the Will in his presence. On the other hand, H
180 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A he has stated that he did not see Wagle present at the time of execution of
the Will. Wagle, the other attesting witness, being alive ought to have been
examined in order to prove the Will. Nothing is brought on record to show
that any attempt was made to examine Wagle or there was any impediment
in examining him. It is true that although Will is required to be attested by
B two witnesses it could be proved by examining one of the attesting witnesses
as per Section 68, Indian Evidence Act. We think it appropriate to look at the
relevant provisions, namely, Section 63 of the Indian Succession Act, 1925
and Sections 68 and 71 of the Indian Evidence Act, 1872 which read:

Section 63 of the Succession Act

C "63. Execution of unprivileged Wills.-Every testator, not being a
soldier employed in an expedition or engaged in actual warfare, or an
airman so employed or engaged, or a mariner at sea, shall execute his
Will according to the following rules:-
(a)
D
(b)

(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
E
personal acknowledgement of his signature or mark, or of 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 be present at the same
time, and no particular form of attestation shall be necessary."
F
Section 68 of the Evidence Act

"68. Proof of execution of document required by law to be a/tested.-
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 it's execution, if there be an attesting witness
G
alive, and subject to the process of the Court and capable of giving
evidence:

Provided ... "

Section 71 of the Evidence Act
H
JANK! NARA YAN BHOIR v. NARA YANNAMDEO KADAM [PATIL, J.] 181

"71. Proof when a/testing wilness denies lhe execution.- If the attesting A
witness denies or does not recollect the execution of the document,
its execution may be proved by other evidence."

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

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

Section 68 of the Evidence Act speaks of as to how a document required E
by law to be attested can be proved. According to the said Section, a document
required by law to be attested 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 an evidence. It flows from this Section that if there be an F
attesting witness alive capable of giving evidence and subject to the process
of the Court, has to be necessarily .examined before the document required
by law to be attested can be used in an evidence. On a combined reading of
Section 63 of the Succession Act with Section 68 of the Evidence Act, it
appears that a person propounding the Will has got to prove that the Will was
duly and validly executed. That cannot be done by simply proving that the G
signature on the Will was .that of the testator but must also prove that
attestations were also made properly as required by clause (c) of Section 63
of the Succession Act. It is true that Section 68 of Evidence Act does not say "
that both or all the attesting witnesses must be examined. But at least one
attesting witness has to be called for proving due execution of the Will as H
182 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A envisaged in Section 63. Although Section 63 of the Succession Act requires
that a Will has to be attested at least by two witnesses, Section 68 of the
Evidence Act provides that a document, which is required by law to be
attested, shall not be used as evidence until one attesting witness at least has
been examined for the purpose of proving its due execution if such witness
B is alive and capable of giving evidence and subject to the process of the
Court. In a way, Section 68 gives a concession to those who want to prove
and establish a Will in a Court of law by examining at least one attesting
witness even though Will has to be attested at least by two witnesses
mandatorily under Section 63 of the Succession Act. But what is significant
and to be noted is that that one attesting witness examined should be in a
C position to prove the execution of a Will. To put in other words, if one
attesting witness can prove execution of the Will in terms of clause (c) of
Section 63, viz., attestation by two attesting witnesses in the manner
contemplated therein, the examination of other attesting witness can be ·'
dispensed with. The one attesting witness examined, in his evidence has to
satisfy the attestation of a Will by him and the other attesting witness in order
D to prove there was due execution of the Will. If the attesting witness examined
besides his attestation does not, in his evidence, satisfy the requirements of
attestation of the Will by other witness also it falls short of attestation of Will
at least by two witnesses for the simple reason that the execution of the Will
does not merely mean the signing of it by the testator but it means fulfilling
E and proof of all the formalities required under Section 63 of the Succession
Act. Where one attesting witness examined to prove the Will under Section
68 of the Evidence Act fails to prove the due execution of the Will then the
other available attesting witness has to be called to supplement his evidence
to make it complete in all respects. Where one attesting witness is examined
and he fails to prove the attestation of the Will by the other witness there Will
F be deficiency in meeting the mandatory requirements of Section 68 of the
Evidence Act.

Section 71 of the Evidence Act is in the nature of a safeguard to the
mandatory provisions of Section 68, Evidence Act, to meet a situation where
G it is not possible to prove the execution of the Will by calling attesting
witnesses, though alive. This Section provides that if an attesting witness
denies or does not recollect the execution of the Will, its execution may be
proved by other evidence. Aid of Section 71 can be taken only when the
attesting witnesses, who have been called, deny or fail to recollect the execution
of the document to prove it by other evidence. Section 7 I has no application
H to a case where one attesting witness, who alone had been summoned, has
JANK! NARA YAN BHOIR v. NARA YAN NAMDEO KADAM [PATIL, J.Jl 83

failed to prove the execution of the Will and other attesting witnesses though A
are available to prove the execution of the same, for the reasons best known,
have not been summoned before the court. It is clear from the language of
Section 71 that if an attesting witness denies or does not recollect execution

- of the document, its execution may be proved by other evidence. However,
in a case where an attesting witness examined fails to prove the due execution B
of Will as required under clause (c) of Section 63 of the Succession Act, it
cannot be said that the Will is proved as per Section 68 of the Evidence Act.
It cannot be said that if one attesting witness denies or does not recollect the
execution of the document, the execution of Will can be proved by other
evidence dispensing with the evidence of other attesting witnesses though
available to be examined to prove the execution of the Will. Yet, another C
reason as to why other available attesting witnesses should be called when
the one attesting witness examined fails to prove due execution of the Will
is to avert the claim of drawing adverse inference under Section 114 illustration
(g) of Evidence Act. Placing the best possible evidence, in the given
circumstances, before the Court for consideration, is one of the cardinal
principles of Indian Evidence Act. Section 71 is permissive and an enabling D
Section permitting a party to lead other. evidence in certain circumstances.
But Section 68 is not merely an enabling Section. It-lays down the necessary
requirements, which the Court has to observe before holding that a document
is proved. Section 71 is meant to lend assistance and come to the. rescue of
a party who had done his best, but driven to a state of helplessness and E
impossibility cannot be let down without any other means of proving due
execution by "other evidence" as well. At the same time Section 71 cannot
be read so as to absolve a party of his obligation under Section 68 read with
Section 63 ofthe Act and liberally allow him, at his Will or choice to make
available or not a necessary witness other.wise available and amenable to the
jurisdiction qf the court concerned and confer a premium upon his omission F
or lapse, to enable him to give a go bye to the mandate of law relating to
proof of execution of a Will.

Turning to the facts of the case on hand, it is evident that only one
attesting witness Prabhakar Sinkar, examined in the case, did not prove the G
execution of the Will inasmuch as he did not prove the attestation of the \\-ill
by the other attesting witness Wagle who though available was not examined.
The scribe examined in the case was not an attesting witness, which is clear
from the evidence on record and as rightly conceded so by learned counsel
for the respondent before us. Hence, it is unnecessary to go into the question
whether the scribe in this case could or could not be an attesting witness. The H
184 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A evidence of Sinkar, the only attesting witness, does not satisfy the mandatory
requirements of Section 68 of the Evidence Act. We are not in a position to
accept the contention urged on behalf of the respondent that the evidence of
other witnesses, namely, that of the respondent and the scribe could be

B
considered under Section 71 of the Evidence Act. Section 71 has no application
when the one attesting witness, who alone has been summoned, has failed to
prove the execution of the Will and other attesting witness though available
-
has not been examined. When the document is not proved as mandatorily
required under Section 68 of the Evidence Act, the provision of Section 71
of the Evidence Act, which is permissive, and enabling in certain circumstances
as discussed above does not help the respondent. In Vishnu Ramkrishna and
C Ors. v. Nathu Vithal and Ors., AIR (1949) Born. 266, Chagla, C.J., speaking
for the Division Bench in similar circumstances has stated that although
Section 63 of the Succession Act requires that a Will has to be attested by
two witnesses, Section 68 of the Evidence Act permits the execution of the
Will to be proved by only one attesting witness being called. Where the
attesting witness, who is called to prove the execution, is not in a position to
D prove the attestation of the Will by the second witness, the evidence of the
witness called falls short to the mandatory requirements of Section 68~ Section
71 of the Evidence Act can only be requisitioned when the attesting witnesses
who have been called failed to prove the execution of the Will by reason of
either denying their own signatures or denying the signature of the testator
E or having no recollection as to the execution of the document. This Section
has no application when one attesting witness has failed to prove the execution
of the Will and other attesting witnesses were available who could prove the
execution if they were called.

The view taken in Mt. Manki Kaur v. Hansraj Singh and Ors., AIR
F 1938 Patna 301, on which heavy reliance was placed by the learned counsel
for the respondent, in our view, is not a correct view as to the scope and
effect of Section 71 of the Evidence Act. That case related to an action taken
on mortgage bond and not on a Will. There were four attesting witnesses.
One of them was dead, two others, who were called, denied execution. But
G the absence of fourth from Court was not explained. On the facts of that case,
the High Court took the view that the execution of the mortgage bond could
be proved by other evidence having recourse to Section 71 of the Evidence
Act. In our opinion, the position of law explained in relation to Section 71
of the Evidence Act in the judgment of Bombay High Court aforementioned
is a correct view• which we approve.
H
JANK! NARAYAN BHOIR v. NARAYAN NAMDEO KADAM [PATIL, J.)185

In the case on hand it was not established
\
that the two witnesses attested A
the Will. The High Court committed a serious error in reversing the judgment
and decree of the first appellate court on a finding of fact, which was based
on proper and objective appreciation of evidence. The High Court was also
wrong in treating the scribe of the Will, Raikar, as an attesting witness without
any basis. Further, the High Court while reversing the judgment and decree
of the first appellate court did not indicate as to any substantial question of B
law that arose for consideration between the parties to deprive the suit
properties to the only daughter of deceased Honaji Dama Kadam.

Under these circumstances we have no hesitation in holding that the
High Court committed a manifest error in reversing the judgment and decree C
of the first appellate court. In this view the impugned judgment and decree
cannot be sustained. Hence, they are set aside. The judgment and decree of
the first appellate court are restored. In the result, the suit filed by the
respondent-plaintiff shall stand dismissed. There shall be no order as to costs.

K.K.T. Appeal dismissed. D

Search Indian case law

Ask in plain English, not just keywords. 25,000 AI words free, no card.

Try "Will attestation"Sign in to search