IMPORTANT POINT
In this case High Court rightly disallowed application to adduce additional evidence under Order 41 Rule 27 C.P.C. belatedly to prove a Will by calling an attesting witness and in holding that the Will was not valid as it has not been proved by mandatory requirements u/ss 59/63 of Indian Succession Act, 1925 r/w Sections 45, 47, 67 and 68 of Evidence Act, 1882. Proving signature of scribe or testator is not sufficient proof of the execution of a valid Will. It is nonest in law.

Headnote:(i) Testamentary Jurisdiction of Civil Court-Two basic features for its exercise-Onus Probandi and Animo attestendi-Meaning, scope and importance-(Evidence Act, 1872-Sections 45, 47, 67 and 68-Indian Succession Act, 1925-Sections 59 and 63-Transfer of Property Act, 1882-Section 3).
       Held : Turning on to the former expression onus probandi , it is now a fairly well-settled principle that the same lies in every case upon the party propounding the will and may satisfy the court s conscious that the instrument as propounded is the last will of a free and capable testator, meaning thereby obviously, that the testator at the time when he subscribed his signature on to the will had a sound and disposing state of mind and memory and ordinarily, however, the onus is discharged as regards the due execution of the will if the propounder leads evidence to show that the will bears the signature and mark of the testator and that the will is duly attested. This attestation however, shall have to be in accordance with Section 68 of the Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also equally well-settled that in the event of there being circumstances surrounding the execution of the will, shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence. (Para 3)
       Held further : Whereas onus probandi lies in every case upon the party propounding a will-the expression animo attestandi means and implies animus to attest: to put it differently and in common parlance it means intent to attest. As regards the latter maxim, the attesting witness must subscribe with the intent that the subscription of the signature made stands by way of a complete attestation of the will and the evidence is admissible to show whether such was the intention or not. (Para 1)
       (ii) Civil Procedure Code, 1908-Order 41 Rule 27-Additional evidence-Prayer to call attesting witness to a Will 10 years after appeal-Attesting witness not called in trial Court-Whether be allowed? (No).
       Held : The time lag in the matter under consideration is also enormous and the additional evidence sought to be produced was as a matter of fact after a period of 10 years after the filing of the appeal. Presently, the suit was instituted in the year 1981 and the decree therein was passed in 1983. The first appeal was filed before the High Court in April, 1983 but the application for permission to adduce additional evidence came to be made only in August, 1993. Needless to record that the courts shall have to be cautious and must always act with great circumspection in dealing with the claims for letting in additional evidence particularly, in the form of oral evidence at the appellate stage and that too, after a long lapse of time: In our view, a plain reading of Order 41 Rule 27 would depict that the rejection of the claim for production of additional evidence after a period of 10 years from the date of filing of the appeal, as noticed above, cannot be termed to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted. The learned Trial Judge while dealing with the matter has, as a matter of fact, very strongly commented upon the lapse and failure on the part of the plaintiffs even to summon the attestors to the will and in our view contextually, the Justice of the situation does not warrant any interference. The attempt, the High Court ascribed it, to be a stage managed affair in order somehow to defeat the claim of the respondents - and having had the privilege of perusal of record we lend our concurrence thereto and the finding of the High Court can not be found fault with for rejecting the prayer of the appellant for additional evidence made in the belated application. In that view of the matter, the first issue is answered in the negative and thus against the plaintiffs being the appellant herein. (Para 20)
       (iii) Indian Succession Act, 1925 -Sections 59 and 63-Proof of will-Validity of Will-Will written by M.G. putting his signature and LTI-Attested by two witnesses-Then signed by testator-Whether valid on the evidence of testator alone that he has signed or on evidence of scribe? (No)-Effect-The Will is nonest-Appeal dismissed.
       Held : The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of same status as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document, required attestation (admittedly in the case of a will the same is required), is a requirement of the statute, thus cannot be equated with that of the scribe. (Para 27)
       Masaney Gowder executed a will said to have been written by one Arunachalam and attested by Subayya and Govindaraju. The two attesting witnesses were not called to give evidence neither there was even any attempt to issue the process against them - why it has not been done? The explanation has been that both the attesting witnesses were inimical towards appellant and as such there was a refusal on their part to come to court and prove the document - how far however the same is an acceptable evidence! We will have to examine, but before so doing the factum of non-availability of the attesting witnesses cannot be discarded and if so, what would be its consequences. The application for additional evidence as dealt with hereinbefore, was made after a lapse of about 10 years after the appeal was filed and the learned judges thought it fit to reject such a prayer and we also do lend our concurrence thereof without taking any exception - but then what is the effect? we have thus existing on record a document said to be a Will of one Masaney Gowder whose signatures stand accepted and two attesting witnesses though named in the body of the document were not made available but the writer of the Will or the scribe came forward and deposed as to the state of affairs on the date of signing of the Will. It would be convenient thus to note the evidence of the scribe and see for ourselves as to whether even a justice oriented approach would be able to save the Will in the absence of the attesting witnesses. (Para 29)
       While it is true that Arunachalam, in the facts of the matter under consideration did write the Will and has also signed it but it is of utmost requirement that the document ought to be signed by the witnesses in order to have the statutory requirement fulfilled. Arunachalam has signed the document as a scribe not as a witness, if there were no signatures available as witness, probably we would have to specifically deal with such a situation and consider that aspect of the matter but presently in the facts and situation of the matter under consideration, we have the advantage of two attesting witnesses, none of whom have been examined and the factum of their non availability also does not satisfactorily been proved. The evidence of one person namely Arunachalam, cannot displace the requirement of the statute when Arunachalam himself has specifically identified himself as Writer and not as a witness though in his evidence, he tried to improve the situation, but this improvement however, cannot said to be accepted: The Will thus fails to have its full impact and its effect stands out to be nonest. (Para 33)
       Held finally : On the wake of the aforesaid, we do not find any reason to interfere with the order of the High Court. The Appeal, therefore, fails and is dismissed. No order however as to costs. The judgment pronounced as above, also cover Civil Appeal Nos. 3165 and 3166 of 1997. All I.As. stand disposed of without any further order thereon. (Para 34)

JUDGMENT

Banerjee, J.-The latin expressions onus probandi and animo attestandi are the two basic features in the matter of civil court s exercise of testamentary jurisdiction: Whereas onus probandi lies in every case upon the party propounding a Will - the expression animo attestandi means and implies animus to attest: to put it differently and in common parlance it means intent to attest. As regards the latter maxim, the attesting witness must subscribe with the intent that the subscription of the signature made stands by way of a complete attestation of the Will and the evidence is admissible to show whether such was the intention or not (see in this context Theobald on Wills 12th Ed. Page 129). This Court in the case of Girja Datt v. Gangotri Datt1 held that two persons who had identified testator at the time of registration of the Will and had appended their signatures at the foot of the endorsement by the Sub-Registrar, were not attesting witnesses as their signatures were not put "animo attestandi". In an earlier decision of the Calcutta High Court in Abinash Chandra Bidvanidhi Bhattacharya v. Dasarath Malo2, it was held that a person who had put his name under the word "scribe" was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a "scribe". In the similar vein, the Privy Council in Shiam Sunder Singh v. Jagannath Singh3 held that the legatees who had put their signatures on the Will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees. In this context, reference may be made to the decision of this Court in M.L. Abdul Jabhar Sahib v. H.V. Venkata Sastri & Sons & Ors.4 wherein this Court upon reference to Section 3 of the Transfer of Property Act has the following to state:

"It is to be noticed that the word "attested", the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.

2. For proper appreciation of the observations of this Court in Venkata Sastri s case (supra), Section 3 of the Transfer of Property Act, in particular, the meaning attributed to the word "attested" ought to be noticed and the same reads as below:

"attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;"

3. Turning on to the former expression onus probandi , it is now a fairly well-settled principle that the same lies in every case upon the party propounding the will and may satisfy the court s conscious that the instrument as propounded is the last will of a free and capable testator, meaning thereby obvious

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2001 Supreme(SC) 1037

Cases Referred (7)