BENGA BEHERA AND ANR. v. BRAJA KISHORE NANDA AND ORS

Citation: [2007] 6 S.C.R. 853

Court: Supreme Court of India

Bench: S.B. SINHA, MARKANDEY KATJU

Case summary

BENGA BEHERA AND ANR. v. BRAJA KISHORE NANDA AND ORS.pdf

Judgment text

BENGA BEHERA AND ANR. v. BRAJA KISHORE NANDA AND ORS. MAY 15,2007 [S. B. SINHA AND MARKANDEY KATJU, JJ.

] WILL: Testatrix executed Will in favour of respondent who was stranger to family--{Jenuineness ofWill challenged by legal heirs-Held: No independent witness examined to show how testatrix came close to respondent-No explanation given as to why valuable agricultural land along with house had been gifted to respondent-Original Will has not been produced- Burde1r-0n respondent was heavy, he being a stranger to the family which he failed to discharge-Trial Judge as also High Court did not take into consideration effect of contradictions and inconsistencies in statement of witnesses and interpolation/variance in the Xerox copy ofthe Will vis-a-vis certified copy thereof-Non-production oforiginal Will stating that Will got lost, gives rise to inference that Will did not contain thumb impression of testatrix-Testatrix was an old and ii/ lady and had no independent adviser in matter ofexecution of Will while respondent and his father being disciple of h matter in brief. 2.

Admittedly, one Sarajumani Dasi was the owner of the property in question. She was aged about 70 years when a Will was allegedly executed by her on or about 15. 1. 1982. She expired on 5. 6. 1983. The beneficiary of the Will was the first respondent herein. The testatrix was living in a math 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 complete stranger to the family. He is a businessman. His father was one of Jo the disciples of late Taponidhi Ramakrushna 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. I 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. I claimed that he had also been residing in the said Math. She was assured of proper care by him and in consideration of the help and assistance rendered to her by respondent No. I, the said Will was executed in his favour. 5. Appellants herein are the heirs and legal repr. ,sentatives of the testatrix.

They contested the said application, inter a/ia, qllestioning execution of the Will alleging the same to be a forged and a sham document. 6. We may notice that the original Will was never produced by the appellant. 7. Execution of the Will was sought to be proved by producing a . y certified copy thereof. A purported xeroxed copy of the said will was also filed. The registration of the said Will was sought to be proved by calling the document in question wherein the contents of the document registered were noted. 8. To prove execution and attestation of the Will, the respondent No. I, inter a/ia, examined Banabehari Upadhyaya (P. W. 9), Purnchandra Rath (P. W. 4) and Surendra Panda (P. W. 7). 9. We will notice their statements before the learned District Judge for detennining the question as to whether requirements of law had been complied with. 10. P. W.

9- Banabehari Upadhyaya who, as noticed hereinbefore: not only scribed the Will but also stated himself to be an attesting witness and identifier of the testatrix, in his deposition stated as under: ~ ".... On 15. 1. 82, Sarajumani Dasi executed a Will in favour ofone Brajakishore Nanda and the same was scribed by me.. I do not remember anything that happened on 15. 1. 82 except what - I have deposed with reference to the document. I first saw Sarajumani Dasi when she executed the sale deed. I did not know her before that.... Surendranath Panda brought Sarajumani Dasi to me with him. Sarajumani Dasi was with Surendranath Panda and I was called to scribe the Will to become an identifying witness and also an attesting witness. Surendra Panda identified Sarajumani Dasi 'to me and that is how I know her...... I did not make a draft of the Will but scribed it as per dictation of Surendranath Panda. Sarajumani Dasi did not put her L. T. I.

in my presence on the Will at the time of execution of it........ I attested her L. T. I. before she put her L. T. I. on the sale deed and the Will. Sarajumani Dasi was not present when I scribed the sale deed and will and made the endorsements attesting·her L. T. I. I do not know if any other person attested the Will and the sali: 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 ~r attested her L. T. I. even though her L. T. I. were not affixed in my pre~ence........ " 11. In his deposition, P. W. 4-Pumachandra Rath (An Advocate) stated: "Thereafter on 15. 1. 82, Sarajurnani again came to the Bar Association and met me there. Brajakishore Nanda (P. W. I - 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 LT. 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 the executant was my client and the Will was written by my clerk in my office on my direction........ " 12. In his deposition, P. W. 7-Surendra Panda (An Advocate) stated thus: "On 15. 1. 82, Sarajumani Dashi came to the Bar Association, Bhubaneswar. She was accompanied by Brajakishore Nanda and Jammaijaya Nanda at that time. That day i. e. 15. 1. 82 Sarajumani Dashi expressed her desire before her lawyer Purnchandra Rath (P. W.

4) to execute the Will in favour ofBrajakishore Nanda....... Then the lawyer made a rough draft ofthe Will. Mr. Rath called Benabehari Upadhyaya to scribe the Will...... The contents of the document were read and explained to Sarajumani Dashi....... Sarajumani Dashi acknowledged the contents of the document to be true and correct and gave her LT. I.. thereon. Attesting witness P. C. Rath, Chandramani and Banabehari Upadhaya were present when Sarajumani Dashi affixed her LT. I. on the Will...... " 13. P. W. 9- Banabehari Upadhyaya did not, thus, admittedly know the testatrix from before. He had seen her for the first time on the day when the Will was executed and because Surendra Panda had asked him to identify her, he did so. It W! lS stated that the same was scribed by him as per dictation of Surendra Panda, but in the Will, it was stated that he himself did it. 14.

If he had put his signature before the testatrix had put her thumb impression on the sale deed and the Will, he does not answer the requirement of attesting witness. He was not aware of any other person attesting the Will and the sale deed. P. W. 9, therefore, failed to prove execution or attestation of the Will. Not only he did not take any instruction from the testatrix before the Will was scribed, but the same was done on the dictation of P. W. 7. There is nothing on record to show that the testatrix understood the meaning, purport and contents of the Will. She had put her thumb impression in his presence. There is nothing on record to show that the Will was read over and explained to the testatrix and she had put her thumb impression upon understanding the contents and purport of the Will and put her thumb impression as admission thereof.

A certificate to that effect was in ordinary course required to be given by the scribe of the Wilt, particularly when the same had been found to be given by him in the sale deed executed by her on the same day which was marked as Ext. 16. 15. P. W. 4-Pumachandra Rath, as noticed hereinbefore, gave acompletely 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 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 ofthe Will did not show the same. Acertificate 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 certificatP- 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 when the testatrix had put her thumb impression and he had attested her thumb impression before she gave her thumb impression. His evidence to the effect that the Will was read over and explained to the testatrix does not find mention in the Will and even a statement that three attesting witnesses signed the Will does not appear to be correct as only the name of P. W. -7 and P. W. -9 appeared as attesting witnesses in the Will. 18.

Learned counsel appearing on behalf of the respondents, however, would submit that as the attesting witnesses were not willing to depose, it was not necessary to prov~ attestation in terms of Section 71 of the Indian Evidence Act. Summons were issued to the attesting witnesses by the Court. One of the attesting witnesses did not appear, P. W. 9 appeared but he was _;. declared hostile. Our attention in this connection has also been drawn to a part of his statement in the cross-examination where he has deposed as under: '".... My Moharir licence might have been cancelled due to my misconduct and illegal activities. " I9. It is not for this Court, as submitted by the learned counsel, to consider the integrity and honesty of the said witness. According to the learned counsel, not only P. W. 4 should be treated to be an attesting witness, but must also be held to have proved due execution of the Will. _,;. , .. ,. 20.

We may deal with the contention of the learned counsel in respect of application of Section 71 of the Indian Evidence Act a little later. But, in our opinion, P. W. -4 cannot be considered to be a witness to execution of the will as he had nothing to do therewith. He comes into the picture only because an endorsement was found on the Xerox copy of the Will which, in our opinion, is of doubtful origin, keeping in view the fact that the same did not find a mention in the certified copy thereof. His evidence, in our opinion, would, thus, not be of much significance. This aspect of the matter was not considered by the High Court at all. We are, therefore, unable to agree with the following finding of the High Court: "The attesting witnesses Puma Chandra Rath(P. W. 4) Chandramani Das Mahapatra and Banahihari Upadhay (P. W. 9) were present when she affixed her LT! on the Will.

All the three attesting witnesses signed the Will in presence of Sarajumani inasmuch as no reliance, whatsoever, can be placed on the testimony of P. W. -4, PW-4 is an advocate. He is supposed to know the importance of attestation. Ifhe 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 is required to be proved in terms 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 clause (c) of Section 63 when at least one of the two witnesses proves the attestation. A Will is required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to -the Will.

Section 68 of the Evidence Act provides for the requirements for proofofexecution ofthe Will. In terms of said provision, at least one attesting witness has to be examined to prove execution of a Will. ) "However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same. Each case, however, must be determined m the fact situation obtaining therein. # ~ The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances s.

irrounding 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 & Ors. , [2006] 14 SCALE 186, this Court held: "Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution ofan unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proofofexecution of document 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 other documents, proof ofexecution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be ~ proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable. ;. ,__ The burden of proof that the Will has been validly executed and is a genuine document is on the propounder.

The propounder is also r required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, "'-- . ( if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage, [2002] 2 SCC 85 and Sridevi & Ors. v: Jayaraja Shetty & . ,... Ors. , [2005] 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document. " Noticing B.

Venkatamuni (supra), it was observed: "The proof a Will is required not as a ground of reading the document but to afford the judge reasonable assurance of it as being what it purports to be. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is demanded from the judge even there exist circumstances of grave suspicion. [See Venkatachala Iyengar (supra)]" [See also Joseph Antony Lazarus (Dead) By LRs. v. A. J. Francis, [2006] 9 sec 515] 50. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside. Accordingly, the appeal is allowed with costs. Counsel's fee assessed at Rs. 5,000/-. D. G. Appeal allowed. •