2003 Supreme(SC) 1203

2004(1) Supreme 451
SUPREME COURT OF INDIA
(From Himachal Pradesh High Court)
R.C. Lahoti and Ashok Bhan, JJ.
Bhagat Ram and Anr. -Appellants
versus
Suresh and Ors. -Respondents
Civil Appeal No. 13711 of 1996
Decided on 25-11-2003
Counsel for the Parties :
For the Appellants : E.C. Agrawala, Manu Krishnan, Advocates.
For the Respondents : B.B. Sawhney, Sr. Advocate, Ritesh Kumar, Ms. Indra Sawhney, Advocates.

IMPORTANT POINT
Same rules of execution are applicable to a codicil which apply to a Will to which the codicil relates, so also, the evidence adduced in proof of execution of a codicil must satisfy the same requirements as apply to proof of execution of a Will.

Headnote:(i) Indian Succession Act, 1925-Sections 2(h), 2(b), 63 & 70-Evidence Act, 1872-Section 68- Will and codicil -Attestation-Whether formalities attaching with execution of Will need to be carried out in relation to a codicil also-(Yes)-Whether a codicil is also required to be proved in the same manner as a Will-(Yes).

       Held : Codicil, as defined, is an instrument made in relation to a Will. It has the effect of explaining, altering or adding to the dispositions made by a Will. By fiction of law, the codicil, though it may have been executed separately and at a place or time different from the Will, forms part of the related Will. That being the nature and character of codicil, flowing from the definition itself, it would be anomalous to accept the contention that though a Will is required to be executed and proved as per the rules contained in the Succession Act and the Evidence Act but a document explaining, altering or adding to the will and forming part of the Will is not required to be executed or proved in the same manner. Section 70 of the Succession Act re-enforces this proposition inasmuch as revocation of an unprivileged Will or codicil is placed at par in the matter of manner of execution. We hold that the same rules of execution are applicable to a codicil which apply to a will to which the codicil relates. So also, the evidence adduced in proof of execution of a codicil must satisfy the same requirements as apply to proof of execution of a will. (Paras 15 and 16)

       (ii) Indian Succession Act, 1925-Sections 63 and 70-Evidence Act, 1872-Section 68-Will, codicil-Attestation-Whether a Registrar of Deeds can also be an attesting witness-(Yes)-If his signature or mark appears on the document akin to one placed by an attesting witness-Whether registration of a Will or codicil dispenses with the need of proving execution and attestation of Will in the manner required by Section 68 of the Evidence Act-(No)-Registration Act-Sections 52 and 58.

       Held : The Registrar of Deeds who has registered a document in discharge of his statutory duty, does not become an attesting witness to the deed solely on account of his having discharged the statutory duties relating to the registration of a document. Registration of any will, and the endorsements made by the Registrar of Deeds in discharge of his statutory duties, do not elevate him to the status of a statutory attesting witness . However, a registrar can be treated as having attested to a will if his signature or mark appears on the document akin to the one placed by an attesting witness and he has seen the testator sign or affix his mark to the will or codicil or has received from the testator a personal acknowledgement of his signature or mark and he has also signed in the presence of the testator. In other words, to be an attesting witness, the registrar should have attested the signature of the testator in the manner contemplated by clause (c) of Section 63 of the Succession Act. No particular form of attestation is provided. It will all depend on the facts and circumstances of a case by reference to which it will have to be answered if the registrar of deeds fulfills the character of an attesting witness also by looking at the manner in which the events have actually taken place at the time of registration and the part played therein by the Registrar. A Registrar of Deeds before he be termed an attesting witness, shall have to be called in the witness box. The court must feel satisfied by his testimony that what he did satisfies the requirement of being an attesting witness. This is the view taken by the High Court of Punjab in the several decisions cited by the learned counsel for the appellants and also in the Division Bench Decisions of the High Court of Calcutta in Earnest Bento Souza Vs. Johan Francis Souza & Ors., AIR 1958 Calcutta 440, and of the Orissa High Court in Kotni R.N. Subudhi Vs. V.R. L. Murthy Raju, AIR 1961 Orissa 180. (Paras 20 & 21)

       So far as the codicil is concerned, it can said to have been dictated by Mast Ram in the presence of Ram Dutt, the witness and Vijay Singh Negi, the Registrar of Deeds. The statement having been recorded, Mast Ram signed the same in the presence of Ram Dutt and Vijay Singh Negi. Ram Dutt and Vijay Singh having seen Mast Ram signing the document, both of them put their signatures on the document obviously with a view to attesting the signatures of Mast Ram. This is what appears to have taken place by a look at the contents of the codicil below the Will. But the codicil cannot be held to be proved merely by drawing upon imagination. It was necessary on the part of the appellants to have examined Ram Dutt and/or Vijay Singh Negi so as to prove the execution and attestation of the codicil in the manner required by Section 63 of the Succession Act read with Section 68 of the Evidence Act. None of the two were produced in the witness box. The codicil cannot be said to have been proved. (Para 19)

       On account of registration of a document, including a will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness. (Para 23)

       So far as the Will dated 16.5.1973 is concerned, its execution is neither denied nor disputed. The factum of the Will dated 16.5.1973 having been duly executed and attested was an admitted fact. The disputed fact was the execution and attestation of the codicil dated 21.5.1973. The codicil is not proved. The codicil cannot have the effect of explaining altering or adding to the depositions made by the Will dated 16.5.1973. (Para 24)

       (iii) Indian Succession Act, 1925-Sections 2(h), 2(b), 63 and 70-Evidence Act, 1872-Section 68-Registration Act-Sections 52 and 58-Will, codicil-Late M executed a Will in favour of MD, his wife, appointing her the sole heir of his property-Will, as executed, bears signature of M and was attested by two witnesses who thumb marked and signed the Will by way of attestation-Registration of Will was done on commission at residence of executant-Executant admitted execution of Will but made an oral statement to Registrar which was in departure from contents of Will-Registrar recorded this statement just below the endorsement relating to presentation of Will-This statement was signed by executant and attested by one witness-Registrar of Deeds had also put his signature below the endorsement-On death of executant, Will came into effect- MD got her name mutated over agricultural land and transferred the land in favour of respondents-Civil suit filed by appellants alleging that MD succeeded only to a life estate if Will is to be read alongwith the statement made by executant and recorded by Registrar of Deeds-Failure to examine attesting witnesses to the Codicil-Execution and attestation of codicil not proved-Codicil cannot have the effect of explaining, altering or adding to depositions made by the Will-Suit rightly dismissed. (Para 24)