VASANTHI RAJAN and RAHUL RAJAN v ANU

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 14[TH] DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944** **RFA (INDIGENT) NO. 303 OF 2022** **AGAINST THE DECREE & JUDGMENT DATED 17/6/2022 IN OS 11/2016 OF SUB COURT, THODUPUZHA** ## **APPELLANTS/DEFENDANTS:** 1 VASANTHI RAJAN AGED 52 YEARS W/O. LATE RAJAN, KALLIRUMBIL HOUSE, VELLAMTHANAM KARA, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT KALLIRUMBIL HOUSE, CHEENIKUZHI KARA AND CHEENIKUZHI POST, UDUMPANNOOR VILLAGE, THODUPUZHA TALUK, PIN-685595. 2 RAHUL RAJAN, AGED 33 YEARS S/O. LATE RAJAN, KALLIRUMBIL HOUSE, VELLAMTHANAM KARA, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT KALLIRUMBIL HOUSE, CHEENIKUZHI KARA AND CHEENIKUZHI POST, UDUMPANNOOR VILLAGE, THODUPUZHA TALUK, PIN-685595. BY ADV T.V.GEORGE ## **RESPONDENT/PLAINTIFF:** ANU, D/O. LATE SUMATHY, AGED 35 YEARS, KOMBANAL HOUSE, VANNAPPURAM VILLAGE, THODUPUZHA TALUK, PIN-685607. BY ADVS. C.K.VIDYASAGAR P.CHANDY JOSEPH THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **RFA NO. 303 OF 2022** **2** ## **JUDGMENT** ## **C.R** The main questions came up for consideration are regarding the application of Section 71 of the Evidence Act in contrast with the mandate under Section 68 of the Evidence Act and what are the requirements to be satisfied so as to make the normal procedure under Section 71 of the Act in proof of a testament - Will or Codicil. It is a case wherein, the deceased testator had committed suicide within hours of execution of the alleged Will, Ext.A1, which was relied on by the plaintiff as against the natural legal heirs. The trial court decreed the suit, against which, the natural heirs, the defendants therein came up in appeal. 2. Both the attesting witnesses to the document, PW3 and PW4 turned hostile to the alleged attestation and execution of the Will, but admitted that they stood only as introducing witnesses to the document **RFA NO. 303 OF 2022** **3** before the Sub-Registrar. Admittedly, both the attesting witnesses, PW3 and PW4 were acting under the instruction of PW7, the scribe as they were the employees under him. PW3 is a neighbour of the testator, but did not say anything about the required _animus attestandi_ to stand as an attesting witness to the testament of the deceased. PW4 admittedly is a total stranger employed at the office of PW7, the scribe. They were not acting under the instruction of the testator, but on the instruction given by PW7, the scribe and signed on the document only as introducing witnesses. 3. When both the witnesses turned hostile by denying the due attestation, the propounder who is bound to prove the Will in accordance with the mandate under Section 68 of the Evidence Act, would stand reverted back to the normal rule of proof of a document in contrast with the requirement under Section 68 of the Act, for which, the legislature has incorporated Section 71, a succeeding provision so as to enable the propounder to prove the document in **RFA NO. 303 OF 2022** **4** accordance with the normal rules. In short, Section 71 of the Evidence Act and the requirement thereunder may not have the nature of an exception carved out of Section 68 of the Act, but it is a dependent provision and would become operative only when it has become impossible to prove the testament in accordance with the mandate under the special provision - Section 68 of the Act. The corollary is that the mere summoning of one of the attesting witnesses in proof of the testament, who turned hostile to the due execution alone is not sufficient to make the succeeding provision – Section 71 of the Indian Evidence Act operative, for which, the propounder has to show that it has become impossible to prove the testament under the special provision – Section 68 of the Act. For that purpose, all the attesting witnesses, who are capable of giving evidence and subject to the process of court and alive at that time shall be summoned and examined in proof of due execution. Section 71 would operate only when all such witnesses, who are alive and capable of giving evidence and subject to the **RFA NO. 303 OF 2022** **5** process of court were summoned and examined in proof of due execution and all of them turned hostile or the propounder could not procure their presence for valid reason including inability to give evidence or on account of their death by that time. A mere examination of one among them will not relieve the propounder from his liability under the special provision - Section 68 of the Act and cannot be permitted to take a safe haven under the umbrella of Section 71 of the Act by “other evidence”, in contrast with the requirement under the said special provision. The expression “other evidence” incorporated under Section 71 of the Act would cover all the requirements under Section 63 of the Indian Succession Act, including clause (c) for establishing the due attestation and execution including the necessary _animus attestandi_ possessed by the attesting witnesses. But the proof to be furnished under Section 71 of the Evidence Act would stand more on preponderance of probabilities in contrast with the requirement as mandated under Section 68 of the Act. ## **RFA NO. 303 OF 2022** ## **6** In other words, the rule of evidence will acquire necessary flexibility under Section 71 of the Act in contrast with the rigorous and rigid nature embodied under Section 68 of the Act. Mere preponderance of probability regarding the due execution and attestation with all necessary mental element would be sufficient to discharge the initial onus on the propounder when the matter is brought under the purview of Section 71 of the Act. The mental element of attesting witness can also be gathered even by preponderance of probability. In fact, Section 68 of the Act and the mandate therein would stand negated when it has become impossible to prove the testament by virtue of that section and thereafter, the parties would stand governed by the normal rule of evidence engrafted under Section 71 of the Act i.e., proof by “other evidence”. 4. It is relevant to extract paragraphs 11 and 12 of the judgment of the Apex Court in **Janki Narayan v. Narayan Namdev [(2003) 2 SCC 91]** : **RFA NO. 303 OF 2022** **7** **“11.** Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the 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 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for 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 of will as required under clause ( _c_ ) of Section 63 **RFA NO. 303 OF 2022** **8** 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 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 the Evidence Act. Placing the best possible evidence, in the given circumstances, before the Court for consideration, is one of the cardinal principles of the Indian Evidence Act. Section 71 is permissive and an enabling 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 **RFA NO. 303 OF 2022** **9** to a state of helplessness and 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 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go-by to the mandate of law relating to the proof of execution of a will. **12. ................................. ........** 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 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 the other attesting witness though available has not been examined. When the document is not proved as mandatorily required under Section 68 of **RFA NO. 303 OF 2022** **10** 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_ v. _Nathu Vitha_ [AIR 1949 Bom 266 : 51 Bom LR 245] 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 prove the attestation of the will by the second witness, the evidence of the witness called falls short of 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 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 the other **RFA NO. 303 OF 2022** **11** attesting witnesses were available who could prove the execution if they were called.” 5. In order to prove the due execution and attestation as mandated under Section 63(c) of Indian Succession Act, no satisfactory evidence was adduced by the propounder though he had taken pain to examine both the attesting witnesses to the document and the scribe. The admission of signatures as that of both the attesting witnesses, though relevant will not give any assistance to the case advanced by the propounder as there is total lack of evidence regarding the required _animus attestandi_ , if any, possessed by them. The circumstances under which they happened to sign on the document was also not brought up or let in by “other evidence” so as to satisfy the requirement. 6. Further, the sound state of mind for the purpose of disposition especially under a testament should be understood as laid down in **P.A.Chacko v. V.M.Andrews (2022 (5) KLT 263)** per contra the requirement under Section 84 of Indian Penal Code and ## **RFA NO. 303 OF 2022** ## **12** what is relevant is the imbalance or impairment of mental condition to the extent of making a person incapable of arriving at a rationale judgment. The testator admittedly committed suicide within hours of the alleged execution of the Will, which would show the extent of mental impairment and imbalance at the time when the alleged Will was executed. On that ground also, the Will in question cannot be accepted. The decree and judgment of the trial court cannot be sustained and hence set aside. The suit will stand dismissed. The appeal is allowed accordingly. No costs. The appellant shall pay the court fee within one month from today, failing which it shall be recovered under Order XXXIII Rule 14 C.P.C.. Sd/- **P.SOMARAJAN** SV **JUDGE**