Tushara Dicrous v. Priyanka Paily and Elizabeth Paily

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 24[th] DAY OF MAY 2022 / 3RD JYAISHTA, 1944 RFA NO. 54 OF 2007 (F) AGAINST THE JUDGMENT AND DECREE DATED 26.08.2006 IN OS No.73/2005 OF SUB COURT, PALA ## APPELLANT/PLAINTIFF: TUSHARA DICROOS, W/o DICROOS, PARAYIL HOUSE, EDAMARUKU P.O, MELAMBHARA KARA, THALAPPALAM VILLAGE, MEENACHIL TALUK. BY ADVS. K.T.POULOSE (KORATTY) C.JOSEPH ANTONY B.KRISHNAN ## RESPONDENTS/DEFENDANTS: 1 PRIYANKA PAILY, D/o PAILY, THATHANATTU HOUSE, PALA P.O, KIZHATHADIYOOR KARA, LALAM VILLAGE, MEENACHIL TALUK. 2 ELIZABETH PAILY, D/o PAILY, THATHANATTU HOUSE, PALA P.O, KIZHATHADIYOOR KARA, LALAM VILLAGE, MEENACHIL TALUK. R1 BY ADV. G.SREEKUMAR (CHELUR) R2 BY ADV. SANTHOSH MATHEW THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 24.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RFA No.54 of 2007 2 ## **JUDGMENT** In a suit for partition, a testamentary succession was claimed based on Ext.B1 registered Will as that of the mother Theyamma by the defendants. The trial court by holding that the Will is genuine dismissed the suit, against which the plaintiff came up in appeal. 2. The parties are siblings. Theyamma died on 29/03/2003. The Will was registered at the house of Theyamma by summoning the Registrar by 5.20 p.m. on 09/01/2003. The propounders gave evidence as DW1 and DW5 and the attesting witnesses were examined as DW2 and DW4. Exts.A6 and A26 were produced to show the ailment of the testator. It shows that she was a chronic diabetic patient and was suffering from various ailments including ailment to her eyes during the relevant period. 3. The inconsistency and contradictory version given by two attesting witnesses and the propounders regarding the persons who were present at the time of its execution and registration causes very serious doubts regarding the RFA No.54 of 2007 3 due execution of Ext.X2 registered Will. DW2 says that the testator's two younger daughters alone were present apart from the Registrar and scribe and two attesting witnesses at the time of its execution and registration. But DW4, the other attesting witness had given an entirely different version stating that the two uncles were also present at the time of its execution and registration. One of the propounders, DW1 had given yet another version by admitting his presence at the relevant time. 4. Yet another reason is also available to non-suit the defendants due to the non-compliance of mandate under Section 63(c) of Indian Succession Act. Even admittedly, DW2, one of the attesting witnesses did not receive any acknowledgment regarding the signature as that of the testator found affixed in the testament, the registered Will. He did not witness its execution or preparation. According to him, it was got prepared on the previous day. This would show the non-compliance of mandate under Section 63(c) of the Act, that is, the attesting witness must see affixture of signature by the testator on the testament or should receive from the testator a personal acknowledgment RFA No.54 of 2007 4 of his signature or mark affixed as that of him on the testament. The oral evidence tendered by DW2, the attesting witness, would sufficiently show that it was prepared and signed by the testator on the previous day and at that time, he was not present in the house. He came to the house on the next day on getting a telephone call. By that time, the Will was got prepared and signed by the testator, but he did not receive any personal acknowledgment regarding the signature affixed as that of the testator on the testament. The legal position laid down by the Apex Court in **Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003)2 SCC** **91)** assumes importance at this juncture. The relevant portion of the judgment is extracted below for reference: _**“** It is thus clear that one of the requirements of due execution of a will is its attestation by two or more witnesses, which is mandatory. Section 68 of the Evidence Act speaks of as to how a document required 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_ RFA No.54 of 2007 5 _evidence. It flows from this section that if there be an 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 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 the 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 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 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_ RFA No.54 of 2007 6 _establish a will in a court of law by examining at least one attesting witness even though the 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 one attesting witness examined should be in a 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 the 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 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 the 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 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_ RFA No.54 of 2007 7 _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.”_ 5. In yet another decision in **Jagdish Chand Sharma v. Narain Singh Saini (AIR 2015 SC 2149)** , the Apex Court had laid down the mandate to be complied with that the Will shall 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 acknowledgment of 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. 6. Then comes the question whether the registration of the Will would give rise to a presumption as to an implied personal acknowledgment from the part of the testator when the very same attesting witnesses had signed on the document in the status of introducing witnesses for RFA No.54 of 2007 8 the purpose of its registration, especially when it was got registered by summoning the Registrar to the house of the testator. Even going by the oral evidence tendered by DW2, the attesting witness, the version given by him regarding the registration stood shrouded by suspicious circumstances firstly on the ground that different versions were given regarding the persons who were present at that time, secondly, a highly improbable story was narrated by him that at first the testator had gone through the testament by using her reading glass and then it was read over to her by the Registrar. No reliance can be placed on his oral evidence, since there are contradictions and inconsistencies regarding the persons who were present at the time of its registration and as such, it will not improve the case advanced by the propounder regarding execution of the alleged Will. 7. Even going by the document, it cannot be said that the Registrar had signed on the document not as an attesting witness, but only in the capacity of statutory obligation and hence it will not render any help. The oral evidence of the other attesting witness, DW4, also cannot RFA No.54 of 2007 9 be relied on in the absence of a consistent case. 8. The legal position is very much settled by the Apex Court in **Yumnam Ongbi Tampha Ibemma Devi v. Yumnam Joykumar Singh and Others (2009 KHC 4563 = 2009 (4) SCC** **780)** . Where a document is required by law to be attested by atleast two witnesses, no valid attestation can be said to have been proved unless there is evidence that two attesting witnesses, one of whom is examined in the case, have signed the document after witnessing the signature of the executant or receiving from him a personal acknowledgment of his signature. 9. It is also brought to the notice of this Court that the testator has executed Ext.B9 Power of Attorney subsequent to the Will in question and it was acted upon by the very same parties. At the most, the same would show the sound state of mind of the testator during the relevant time. But when there is non-compliance of mandate under Section 63(c) of the Indian Succession Act, it cannot be cured by mere registration of the testament. 10. It is also brought to the notice of this Court that the dispute is pertaining to Ext.X2 Will and its RFA No.54 of 2007 10 validity and the parties have not opted to give any evidence pertaining to an earlier registered Will under a bonafide mistake and as such, pressed for an opportunity to adduce evidence regarding its execution. Hence, the decree and judgment of the trial court are set aside. The matter is remanded back to the trial court for affording an opportunity to the parties to prove the earlier registered Will in accordance with the mandate. The trial court shall also explore the possibility of a settlement in the matter. The parties shall appear before the trial court on 06/07/2022 **.** The appeal will stand allowed in part accordingly. No costs. **Sd/-** ## **P.SOMARAJAN** **JUDGE** DMR/-