Judgment:
1. The question that has arisen during the trial of this contested probate action is one that is likely to affect a very large number of similar contested testamentary matters. The question is this: in such matters, i.e., contested matters seeking probate or Letters of Administration with Will annexed, is it necessary that the evidence of the attesting witness be taken first, before the evidence of the Plaintiff (original Petitioner)?
2. The context in which this question arises is this. The Plaintiff, Walter DSouza, (âWalterâ) is the brother of the deceased testatrix, one Lydia DSouza (âLydiaâ), who died in Mumbai on 17th June 1995. Walter says Lydia left a will dated 2nd November 1983, one that he propounds in the petition. The caveatrix, Alba DSouza (âAlbaâ) is Lydias sister-in-law, i.e., Lydias brothers widow. Lydias brother (Albas husband), Victor DSouza, died before Lydia. Alba passed away after she filed her caveat. Her three children, Anita, Valerian and Vitrus filed caveats (the two sons filing a joint caveat) and, adopting Albas contentions, continued the opposition to the probate petition.
3. Issues were struck on 1st October 2010. The Plaintiff, Walter, filed an evidence affidavit dated 26th November 2010 and an accompanying compilation of documents. These were suitably marked in evidence or for identification on 27th October 2014. There is also on file the affidavit dated 26th November 2010 of one Vasant G. Farad, an attesting witness to the will in question. The matter was then ultimately placed for cross-examination of the Plaintiff in Court on 11th November 2014.
4. The original will is lodged in the registry and assigned a filing number. On 27th October 2014, I assigned it a number in the trial, viz., Exhibit âP-1â, clarifying that this was only for convenience and ease of reference and that this marking did not mean that the Will had been received in evidence or proved.
5. On 11th November 2014, Mr. DMello, learned Advocate for the Plaintiff, tendered the Plaintiff for cross-examination. Mr. Narula, learned Advocate for the Defendants, was prepared to cross-examine him. Before he could begin, however, it was found that the will in question had till then not been marked in evidence. It was only marked for identification. I pointed out to Mr. Narula that should he, in these circumstances, show the Will to the witness and put to him any questions to him, or confront him with it or any part of it, I would have no choice but to then receive the Will in evidence as his, i.e., the Defendants document. At that point, the challenge to the probate action would instantly fail and the inevitable consequence would be a dismissal of the caveats. Mr. Narula fairly stated that he did indeed have questions for the Plaintiff on the will, especially since Issues Nos. 2 and 3 related to Lydias state of mind and mental capacity and whether the will was invalid as having been procured by force and coercion. His submission then was that in such a situation, he would have no choice but to seek leave to cross-examine the Plaintiff twice, the latter portion of his cross-examination being reserved till after the will was received in evidence.
6. This is not an uncommon situation. Indeed, it occurs in practically every single contested testamentary mater. Our practice on the Original Side is that the original will is deposited with the Prothonotary and Senior Master. Every will so deposited is given a unique filing number. In Court and at the trial however, the will is frequently not marked for identification and almost never as an exhibit. In fact, I have before me, at least one case where an entire trial has been completed without the original will ever being retrieved from the Registry and shown to a single witness. Therefore, the first step, as a matter of procedure, must be to uniquely identify the will as a document in the trial. It is not sufficient merely to have a filing number of the will. A linkage must be established between the document filed in the Registry and the record of the suit in the trial. This can be done by giving it some appropriate identification number. Unless this is done, there is every likelihood of the original will never being shown to any witness and of the original will never forming part of the record. No action where a will is sought to be proved can succeed without the original will being shown to a witness and the original will being received in evidence as part of the record in the trial of the suit. Lodging in the registry and the assignment of a filing number is not and cannot possibly be the same as receiving a will in evidence.
7. When and how is this best done? If the Will is so received, is the Defendant foreclosed from impeaching it? I requested both Mr. Narula and Mr. DMello to address me on this, and stood the matter over to 12th November 2014. On that day, I heard both of them at some length. Mr. Narula submitted a comprehensive compilation and also placed certain authorities. I will turn to these presently.
8. Section 63 of the Indian Succession Act, 1925 prescribes the manner of making of an unprivileged will. For our purposes, it is sufficient to note that every will must be executed in the presence of two or more witnesses. Each witness must have seen the testator sign the will (or affix his mark) and each witness must sign in the presence of the testator (I am not here considering the slightly more complex situation where the will is signed by some other person in the presence of and under the direction of the testator. The principle is the same.).
Section 63.âExecution of unprivileged Wills Every testator, not being asoldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
9. On the testators death, probate may be sought and, in certain cases specified under Section 57 of the Succession Act, must be sought. An application or petition for probate can only be filed by an executor named in the will under Section 222 of the Succession Act. In the circumstances contemplated inter alia by Section 231 of the Succession Act, an application or petition for Letters of Administration with Will Annexed may be brought by a universal or residuary legatee. For the present purposes, there is no distinction between these actions as I am considering the question of when that will is to be brought into evidence and how.
10. Chapter XXVI, Rules 369 to 436 (âthe Rulesâ) of the Bombay High Court (OS) Rules deal with testamentary and intestate succession. A probate petition must comply with Rules 374 of the Rules and must be in Form No.97. Rule 374(c) requires that along with the petition an affidavit must be filed by one of the attesting witnesses, and that this affidavit must be in Form No.102.
11. Proof of a will means its proof âin its solemn formâ. This means that what must be established is that the testator signed the will on the date and at the time when it is supposed to have been signed; that the execution of the will was witnessed by at least two persons; that all witnesses have signed on the Will; and that each witness was present before the executor. It must be also shown that the testator possessed sufficient dispositive capacity, i.e., that he was of a sound and disposing state of mind, memory and understanding. Irrespective of whether the probate petition is opposed, this much must be established. That is done in the first instance by filing an affidavit of at least one of the attesting witnesses. Once a citation is served, any person so served and with a caveatable interest can then oppose the grant of probate by filing a caveat. That caveat is governed by Rule 401. An Affidavit in Support is required under Rule 402. On such affidavit being filed, the petition is numbered as a suit under Rule 403. The Petition is treated as the plaint and the affidavit as the Written Statement. This is in keeping with Section 295 of the Succession Act, which provides that where there is a contest to the will, the proceedings shall take âas nearly as may beâ the form of a regular suit.
12. Rule 403 says this:
403. Procedure on affidavit in support of caveat being filed â (i) Upon the affidavit in support of the caveat being filed, the petition shall be numbered as a suit in which the petitioner shall be the plaintiff and the caveator shall be defendant. Notice of the fact that the petition has been renumbered as a suit shall be given by the Prothonotary and Senior Master to the petitioner or his Advocate on record. The notice shall be in Form No.
117. The petition shall be treated as the plaint and the affidavit in support of the caveat shall be treated as the written statement of the caveator. The procedure in such suit shall, a s nearly as may be , be according to the procedure applicable to civil suits on the Original Side of the Court.
ii) Where there are two or more caveators and each of them has filed an affidavit in support of his caveat, separate suit numbers shall not be given to the petition, but all the caveators shall become party defendants in one suit.
(Emphasis supplied)
13. It is, however, well settled that although this contest is tried as a Suit, it is not a suit (ThritySam Shroff v Shiraz Byramjee Anklesaria, 2007 (2) BCR 560).The âplaintiff seeks no relief from the âdefendant. They are plaintiff and defendant in name only. The action is not commenced with a plaint or a suit. An affidavit in support of the caveat is not strictly speaking a written statement. Among other things, it contains no traverse of the petition (now treated as a suit). The only reason for this provision in Section 295 of the Succession Act and in Rule 403 of the Rules is that our adversarial system knows of no way of resolving disputed questions of fact except by putting them through the rigour of a trial where issues are framed, documents marked in evidence and the testimony of witnesses is subjected to the scrutiny of the cross-examination.
14. Consider for a moment the manner in which the issues are framed. Under Order XIV of the Code of Civil Procedure, 1908 (âCPCâ), issues arise when material propositions of fact or law are affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by the other is a distinct issue. Issues are struck on a reading of the contesting pleadings, viz., the plaint and the written statement. In every probate petition, however, one issue always arises and that is whether the will is sufficiently proved in its solemn form. The burden of proof is always on the petitioner. This is discharged by filing an affidavit of an attesting witness. Even in a contested petition this issue always arises and is always the first issue framed. It has two ingredients, though these are sometimes cast as separate issues. The first is about the actual physical act of the will having been signed by the testator and the attesting witnesses. The second issue, frequently combined with the first, is about the testators dispositive capacity. Where there is no contest, these issues are not formally struck, but the law nonetheless demands a level of proof. This again is a departure from the process of a regular civil suit. On a caveat being entered, additional issues may be struck, the burden of proof of which would lie on the defendant-caveator. These might include, for instance, whether the will was obtained by fraud, undue influence or coercion; whether the will is a forgery; whether it is fabricated; or whether it is an unnatural will. The factual conspectus on these issues speaks to a very wide canvas of surrounding circumstances. An examination is required of the testators health, his life, his business, his relationships and so forth. In order to establish many of these circumstances, a particular witness, and perhaps the plaintiff himself, may be required to be confronted with the will in question. But it very often happens that the plaintiff, who is an executor in a probate matter, is not a witness to the will. He may not even have been present at the time when the will was executed. He may know only that there exists such a will and that he is named in it as an executor. He is in no position to attest to the act of execution of the will or perhaps even to the state of the executors mental or physical health at the time of its execution. Now, if the plaintiff is a person related to the testator and it is proposed to put a question to him by showing him in cross-examination the will itself, then, it is evidently necessary that the will should have already become a part of the trial record. If this is not done first, i.e., if the disputed will is not made part of the trial record by being marked in evidence (and not merely for identification), and the witness is nonetheless confronted with it in cross-examination, then it must follow that the will is to be immediately marked upon being so shown in cross-examination as the document of the disputant himself. Once that happens, the disputant-caveator can no longer challenge the will, for it is he who has introduced it in evidence. The result is catastrophic for the defendant, for it must result automatically in a dismissal of the caveat and a grant of probate.
15. This is on the footing that the will can be used in this manner in evidence in the first place. Mr. Narula submits, and in my view quite rightly, that Sections 68, 69 and 71 are a safeguard against precisely such situations.
68. Proof of execution of document required by law to be attested.â If a document is required by law to be attested, it 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 evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
69. Proof where no attesting witness found.â If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
71. Proof when attesting witness denies the execution.âIf the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.â
16. Section 68 speaks of documents that are required by law to be attested. Evidently, a will is such a document. Section 68 also says that no such document can be âused as evidence until at least one attesting witness has been called for the purpose of proving of its executionâ. This means that unless at least one attesting witness steps into witness box, the will, though it may be lodged in our Registry where it has been assigned a filing number and even though it may have received some identification number in the trial, cannot be used in evidence at all. The proviso has no application at all to any will; it speaks only to registered documents other than wills, and of these it dispenses with proof by an attesting witness except where there is a specific denial of execution. The upshot of this is that the execution of every will must first be proved by an attesting witness.
17. Order 18 Rule 3-A of the CPC states as a general rule that the Plaintiff in any civil proceeding must give evidence first. A Court undoubtedly has the power to make an exception. However, it must be remembered that a testamentary action, though contested, is not a civil suit. It is merely tried as one, that is to say that its determination is in the form and in the manner of a civil suit, and that is only a matter of procedure. The provisions of Order 18 Rule 3-A of the CPC, clearly procedural, must yield to the substantive law in Sections 68, 69 and 71 of the Evidence Act. There is no inflexible rule that the Plaintiff must always be examined first. Even in a civil suit Courts enjoy discretion in that behalf. In a contested testamentary action, Section 68 of the Evidence Act appears to me to demand such an exception.
18. Further, Section 295 of the Succession Act and Rule 403 of the Rules only say that the procedure in a contested testamentary action is to be âas nearly as may beâ that of a civil suit. They do not require that the procedure shall be rigidly that of a civil suit. It is, therefore, in my view incorrect to say that in testamentary matters, the plaintiff must invariably enter the witness box first. Indeed, the correct position in law seems to me to be exactly the reverse.
19. In such cases, therefore, as a matter of invariable practice, one attesting witness must be examined before the plaintiff so that the will can be received in evidence. What is to be done if there be no attesting witness? Again the Evidence Act in Sections 69 and 71 provides for this. Section 69 clearly states that where no attesting witness found, the attestation by that witness must be proved. This can be done through the evidence of some other person present at the time of execution of the Will. Section 71 of the Evidence Act provides for the third possibility where the attesting witness denies execution. Then execution is to be proved by other evidence.
20. The effect of these three sections read together is that in all such cases where a will is sought to be proved, its execution must be proved first. It is entirely possible in a given case that the plaintiff as an executor is also an attesting witness. In that case, the plaintiff serves a dual capacity and he can be examined first. But if he was not a witness and was neither present at the time of the wills execution or even if he was present at the time when the will was executed but did not witness it, the attesting witness must be examined first, for he is the best person to identify his signature and that the deceased.
21. Mr. Narula is correct in his submission, therefore, that the provisions of Order XVIII Rule 3-A of the CPC that the Plaintiff should enter the witness box first cannot apply at all to contested testamentary proceedings. As he rightly points out, the provisions of that order are directory and not mandatory (2000 (Supp.) Bom. C.R. 513).Mr. Narula is also 3 Sanjay Narayanrao Barde and Anr. v Sau Vimal Keshaorao Bairam and Ors. correct in relying on the decision of a learned Single Judge of the Delhi High Court (R.C. Lahoti, as he then was) in SudirEngineering Company s Nitco Roadways Ltd (1995 IIAD Delhi 189, 1995 (34) DRJ 86, 1995 RLR 286.).
(6) Let me now look at the law. Any document filed by either party passes through three stages before it is held proved or disproved. These are: First stage: when the documents are filed by either party in the Court; these documents though on file, do not become part of the judicial record; Second stage: when the documents are tendered or produced in evidence by a party and the Court admits the documents in evidence. A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence. Third stage: the documents which are held proved, not proved or disproved when the Court is called upon to apply its judicial mind by reference to Section 3 of the Evidence Act. Usually this stage arrives at the final hearing of the suit or proceeding.
(8) I am firmly of the opinion that mere admission of document in evidence does not amount to its proof .
(8.1) Admission in evidence of a partys document may in specified cases exclude the right of opposite party to challenge its admissibility. The most prominent examples are when secondary evidence of a document within the meaning of Sections 63-65 of the Evidence Act is adduced without laying foundation for its admissibility or where a document not properly stamped is admitted in evidence attracting applicability of Section 36 of Stamp Act.
(8.2) But the right of a party disputing the document to argue that the document was not proved will not be taken away merely because it had not objected to the admissibility of the document. The most instructive example is of a Will. It is a document required by law to he attested and its execution has to he proved in the manner contemplated by Section 68 of the Evidence Act read with Section 63 of the Succession Act. The party challenging the Will shall not be excluded from demonstrating at the final hearing that the execution of the Will, though exhibited, was not proved as statutorily required.
(9) The law laid down by the Supreme Court in Sait Taraji Khimechand v. Yelamarti Satvam (AIR 1071 SC 1865) is:- âthe mere marking of an exhibit does not dispense with the proof of the document .
(10) Two Division Benches of Lahore High Court Ferozchin vs Nawab Khan, AIR 1928 Lahore 432 and Hari Singh vs Firm Karam Chand, AIR 1927 Lahore 115 have clearly held that the admission of documents under Order 13 Rule 4 Civil Procedure Code does not bind the parties and unproved documents cannot be regarded as proved nor do they become evidence in the case without formal proof.â
(Emphasis supplied)
22. Therefore, Mr. Narula is correct in his submission that if a contesting witness is not examined first to prove the execution of the will, it cannot be marked in evidence, and in that situation, the cross-examination of the plaintiff might well be meaningless or futile in the sense that the plaintiff may need to be recalled as a witness after an attesting witness proves due execution of the Will. In fairness Mr. DMello accepts that this appears to be the correct position in law.
23. In this view of the matter, and as a matter of invariable practice for such contested proceedings relating to proof of wills and testamentary dispositions in their solemn form, the provisions of Sections 68, 69 and 71 of the Indian Evidence Act being mandatory, and notwithstanding the provisions of Order XVIII Rule 3-A of the Code of Civil Procedure, 1908, it is the evidence of the attesting witness that must always be led first. If he is unavailable or denies execution of the will then the provisions of Sections 69 and 71 of the Evidence Act must be followed. In any event, the execution of the will must be proved before the propounder of the will is examined (unless the propounder is also an attesting witness). Upon execution of the will being proved in this manner, the will must be marked as an exhibit in evidence. This admission of the will in evidence does not mean that it cannot be challenged or disproved. The decision of Lahoti, J in SudirEngineering covers exactly such a situation. It is always open to the defendant to prove, for instance, that, though the wills execution is attested to and it is marked in evidence, the will a fabrication, obtained by undue influence and so on. In the words of the Delhi High Court, the right of a party disputing the document to argue that the document was not proved is not taken away by its admission in evidence. The party challenging the will can yet demonstrate that the will was not proved as required by law.
24. As a result, the cross-examination of the attesting witness, Mr. Vasant Farad, will be conducted first, followed by the cross-examination of the plaintiff. The date and time for the cross-examination of Mr. Farad will be separately decided and noted.
25. I must thank both Mr. DMello and Mr. Narula for their assistance in the matter. Mr. Narula in particular did extensive research and put together a substantial compilation in a very short period of time.