T. Vaiphei, J.
1. This appeal is directed against the judgment and order dated 13.07.2004 passed by the learned Addl. Deputy Commissioner, Shillong, in L/A Misc, Case No. 38(T)1992, refusing Letters of Administration under Section 299 of the Indian Succession Act, 1925, in favour of the Appellant.
2. Heard Mr. M.F. Qureshi, the learned Counsel for the appellant and Mr. S.R. Sen, the learned senior counsel for the respondent.
The facts relevant for diposal of this appeal may be briefly noted at the outset. One late Satyanand Verma died on 25.09.76 at Nongthymmai, Shillong, and was alleged to have executed a Will on 20.11.74 which was registered on the same date in the Office of Sub-Registrar, Jansath, Muzaffarnagar District (U.R), which was witnessed by (i) Ramsaran (ii) Trilokinath and (iii) Shri Krishna Murari, Sub-Registrar, Jansath. Seventeen years after the death of late Satyanand Verma, the appellant filed an application under Section 276 of the Indian Succession Act, 1925, (the Act for short) for grant of Letters of Administration by annexing the alleged will and the same was registered as LA Misc. Case No. 38(T)92. The deceased admittedly left behind him six sons including the appellant. However, the application of the appellant was objected to by one of the sons Shri Ved Mitra Verma, who is the respondent herein, by filing his objection on 27.06.94 with a prayer to reject the application filed by the appellant. The learned Addl. Deputy Commissioner, Shillong, which was ceased with the application, by his order dated 28.04.95 rejected the objection raised by the respondent and granted the Letters of Administration in favour of the appellant on 01.05.95. The respondent promptly preferred and appeal before this Court, which by the order dated 28.04.95 in MAF (T) 28/1995 set aside the impugned order and remitted the case to the learned Addl. Deputy Commissioner, with a direction to dispose of the case afresh within a period of three months from the date of the order. The Letters Patent Appeal being LPA No. 2(S) 1997 preferred by the appellant from the aforesaid order of this Court was dismissed by the Division Bench of this Court by the order dated 06.08.97. It so happened that instead of disposing of the case within three months, the learned Addl. Deputy Commissioner took more than seven years to dispose of the case, which, according to the appellant, was to the lapses on the part of the respondent.
3. In the course of trial before the learned Addl. Deputy Commissioner, three witnesses were examined on behalf of the appellant while the same numbers of witnesses were examined on behalf of the respondent. The trial Court framed the following issues:
1. Whether the application for Letters of Administration is barred by Limitation.?
2. Whether the Testator (L) Satyanand Verma was mentally and physically fit to execute the Will on 20.11.1974?
3. Whether the Will is genuine?
Issue No. 1 was decided in favour of the appellant but issues No. 2 and 3 were decided against him where upon the trial Court rejected the application for Letters of Administration filed by the appellant by the impugned order. It is this order which is under challenge in this appeal.
4. In rejecting the application of the appellant, the learned Addl. Deputy Commissioner held that when late Satyanand Verma, who was an aged man in 1974 and originally residing at Shillong and had gone to Jansath in U.P. for eye operation, it was strange that he executed a will at that point of time, particularly, when he was not in a position to see clearly and did not even mention it to anybody thereafter. He also observed that the two attesting witnesses could not be examined as they had already died and that only the Sub-Registrar i.e., PW 3 was examined, but whose evidence could not clearly establish that the Testator was mentally and physically fit to execute the will and further that it was not clear as to who identified the testator. The trial Court also found from the evidence of PW 3 that the Will was executed out side his Office, thereby clearly indicating that the Will was not executed in the presence of the Sub-Registrar. According to the trial Court, from these findings, it was of the opinion that the Testator was not mentally and physically fit to execute the Will. The trial Court also took note of the fact that the name of the only daughter of the Testator was wrongly shown in the Will giving rise to suspicion as it was not possible for the father to give wrong name of his daughter if he was mentally and physically fit at the relevant point of time. The trial Court observed that the aforesaid suspicious circumstances surrounding the execution of the Will have not been explained satisfactorily by the appellant which led her to conclude that the execution of the Will was not proved. The trial court, therefore, held that the will was not proved in accordance with Sections 59 and 63 of the Indian Succession Act and Sections 67 and 68 of the Evidence Act which required the propounder of the Will to prove that the witnesses saw the Testator signed the Will and have themselves signed the same. These findings and conclusions are under challenge in this appeal.
5. Section 68 of the Evidence Act, 1872 deals with proof of execution of document required by law to be attested. The section lays down that if the deed sought to be proved is a document required by law to be attested and if there be an attesting witness alive and subject to process of the Court and capable of giving evidence, he must be called to prove execution. The execution consists in signing a document written out, read over and understood and to go through the formalities necessary for the validity of legal act. The meaning of 'attestation' is given in Section 63 of the Succession Act, which reads thus:
63. Execution of unprivileged Wills--Every testator, not being a soldier 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 been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark or 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.
6. What is noteworthy from the provision extracted above is that the attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other persons sip the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witness signed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. Thus, in order to prove the genuineness of a Will, the propounder has to be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document of his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of execution proving its execution. This is the mandate of Section 68 and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement. The legal position is summed up by the Apex Court in Sashi Kumar v. Subodh Kumar : AIR1964SC529 in the following terms:
The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63, Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the disposition made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations.
7. In the instant case, it is the case of the appellant that even in the absence of both the attesting witnesses, who are already dead, the execution of the Will has been satisfactorily proved by him by the evidence of the Sub-Registrar, Shri Krishan Murari, the then Sub-Registrar, Jansath, Muzaffarnagar District (U.P.), who registered the Will and was examined as RW. No. 3 on 11.04.1996 on commission. I have carefully gone through the testimony of this witness. This witness testified that the original document (the Will) was written by Shri Trilokhi Nath, who signed on the document in his presence in which Shri Ram Saran signed as a witness and Shri Satyanand (testator) put his thumb impression in presence of them; that the Will was read over to Shri Satyanand Verma, who signed after hearing and understanding the same on the document; that Shri Satyanand was identified by Shri Trilokhi Nath, the deed writer who he knew him before hand; that the second witness was Shri Ram Saran Sarpanch, Village--Basaich, who was looking like a gentlemen; that at the time of making the Will, Shri Satyanand was mentally sound and he registered the Will on being fully satisfied; that he was not a witness in the Will but he registered the Will under registration Act, 529/59 and that he signed the Will in his capacity as the Sub-Registrar; that Shri Satyanand Murari, witnesses Shri Trilokhi Nath and Shri Ram Saran signed kin the document (Will) in his presence and the signatures of Shri Satyanand Verma, Ram Saran, Trilokhi Nath and his signature in the Will were exhibited as Exhibits 'A', 'B', 'C' and 'D'. His cross-interrogatories did not bring out any material to belie his credibility or discard his evidence. The evidence of PW 3 clinchingly shows that the Will was signed by the testator, which was seen by the attesting witnesses, namely Shri Ram Saran and Trilokhi Nath, that the testator was in a sound and disposing state of mind and that he understood the nature and effect of the disposition and put his signature to the Will of his own free will. In other words, on assessment of the oral evidence of PW Nos. 1 and 3 having noticed that there was nothing elicited in the cross-interrogatories of PW No. 3 to disbelieve his evidence, I am of the view that the appellant has proved the execution of the Will by the testator.
8. It is, however, contended by Mr. S.R. Sen, the learned senior counsel for the respondent, that when the appellant could not produce at least one of the attesting witnesses has not been proved by the appellant in the manner recognized by law, the evidence of PW No. 3, who is not even an attesting witness, cannot take the place of due attestation of the document as required by Sections 67 and 68 of the evidence Act. His further submission is that suspicious circumstances such as the concealment of the will by the appellant for seventeen long years, the taking of the testator elsewhere for execution of the Will have not been dispelled by the appellant for grant of probate.
9. There is no hard and fast rule that only the attesting witnesses can prove the execution of a Will. No doubt, the evidence of the attesting witness carries weight and, if sufficient to prove the execution, raises presumption of the validity of the document as a deed embodying the transaction which it purports to. It should not, however, be overlooked in this case that the Will was registered in accordance with the Registration Act, 1904. The registration of a Will would go a long way to remove the doubt as to the genuineness of the Will, even though such registration alone cannot per se prove the execution of the Will, particularly, when the execution thereof is specifically denied. In the instant case, the specific and categorical statement of the appellant (PW No. 1) in his examination-in-chief that he said attesting witnesses are dead has not been controverted by the respondent. All that he was asked in the cross-examination is the non-production of the death certificates of the attesting witnesses. It is apparently due to the death of the two attesting witnesses, namely, Shri Ram Saran and Trilokhi Nath, that the appellant had to examine the Sub-Registrar, Jansath, Muzafarnagar (UP), PW No. 3. The question to be determined then is whether the evidence of the Sub-Registrar, Jansath, who admittedly registered the Will and appeared as PW 3, could prove the execution of the Will as the endorsement made by him on the Will was in his official capacity. In the instant case, as noted earlier, from the statement of PW 3, it has been amply proved that the signatures of the testator, the attesting witnesses, namely, Shri Ram Saran and Shri Trilokhi Nath, appearing in the Will, which are at 'A', 'B' and 'C' respectively were put in his presence and in the presence of the attesting witnesses. I have perused the Will and the endorsement made thereon by the Sub-Registrar, Jansath (PW 3) and I am satisfied that the Will is genuine and has been duly executed and can be acted upon. Much emphasis is placed by the learned Counsel for the respondent on the statement of PW 2 (the translator of the Will) that according to the question and answer of the questionnaire No. 2, it appeared to him that the Will had not been executed in front of the witnesses. According to the learned senior counsel, this shows that the Will was never signed by the testator or the attesting witnesses in his presence. In my opinion, this submission cannot be accepted. The English translation of the Will, which is not disputed by both the parties, unambiguously indicates that though the execution of the Will was done outside his office, the execution was admitted before him.--See answer to questionnaire No.2. Similarly, the submission of the learned senior counsel that when the name of the daughter of testator was wrongly mentioned in the Will as Pip Lakshmi Devi, instead of Vijay Laskhmi Devi, a genuine doubt has been created in the execution of the Will by the testator, who could not have forgotten the name of his daughter, cannot hold water inasmuch as such slight discrepancy is quite natural when the Will was not personally written by the testator.
10. On the concealment of the Will by the appellant for seventeen long years, the explanation of the appellant is that he was in possession of the house and other properties mentioned in the Will and that he filed the application for letter of administration only when the respondent filed a title suit against him before the learned Assistant to Deputy Commissioner. He denied that he did not tell any of his brothers or sisters about the Will, and that he disclosed for the first time in 1990 the existence of the Will to make out a case for himself. On the contrary, he deposed towards the end of his examination-in-chief that his brother complained to the Durbar due to execution of the Will by his father giving the property to him. The question to be examined is whether the Will was concealed by the appellant as claimed by the respondent, In order to prove that the Will was never concealed by the appellant but was known to all the brothers just after the death of the testator, Mr. K. Khan, the learned Counsel for the appellant heavily relies on Ext. 10. This exhibit is apparently the proceeding dated 11.01.1977 of the Nongthymmai Durbar in connection with the complaint lodged by the respondent and the same speaks of the Deed of Agreement executed by the testator in the year 1974. The genuineness or otherwise of this document is not impeached by the respondent. Since, this document is likely to throw light on the concealment or otherwise of the Will, the same is reproduced herein below in extenso:
Enquiry in connection with the Report of Shri V.M. Verma. Dated 11th January. 1977
The following are the Office bearers:
From the side of Complainant, Shri V.M. Verma. From the side of:
Shri Dharam Deo Verma & his/their elder brother Srinivas Verma.
From the side of Headman of Lumiawblot:
1. U Edwin Pyngrope, Rangbah Shnong,
2. U Srowell Diengdoh, Ex-Member.
3. U Ngei Myntribamon.
4. U Jeom Kharkongor.
5. U Shrimanlal Sarma bad.
6. U BP Kharkongor.
After through scrutiny ad perusal of Deed of Agreement executed by the father Late Satyananda Verma, who had executed it in the year 1974, there was a detailed discussion among the members present and the following are the resolutions/understandings:
1. For the betterment and upliftment among the brothers Shri V.M. Verma is hereby allowed to stay in the rooms of Upper story standing on the southern part (altogether 3 rooms) by the side of Public Road towards Umpling.
2. That Mr. Dharam Deo Verma shall help by giving a plot of land to his elder brother Shri V.M. Verma this in according to the commitment given by their uncle Shri Ramsaran.
3. That so long Shri V.M. Verma has not been able to get a house shall stay in the same according to the above terms and conditions without creating any dispute whatsoever.
4. That when Dharam Deo Verma will secure a plot of land for his Shri V.M. Verma he shall vacate the rooms occupied by him the Upper Storey as stated.
5. That Shri V.M. Verma should withdraw the complaint from the Nongthymmai PS as agreed above to maintain good relationship among brothers.
Sd/-S. Sharma, Edwin Pyngrope,
17.01.77 R/S. Lumiawblot, Nongthymmai,
Shillong
Sd/-VM Verma, UN gei Myntri
Kharmon
17.01.77
Sd/-C.S. Sharma U.J.S.K. Kongor
17.01.77
Sd/-S. Verma Srowell Diengdoh
17.01.77
Kharkongor.
11. At this stage, it may also be noted that the respondent, towards the ends of his cross-examination, testified that some door had been tampered with after the death of his father (the testator) for which he lodged a complaint with Nongthymmai Durbar, (but) he did not remember when, perhaps it was in 1977, and that the Durbar, in their decision, allowed him to live in three rooms. In my opinion, the reason stated by him for lodging a complaint with the Nongthymmai Durbar is hardly material, but the fact remains that the resolutions contained in Ext. 10 pertained to the dispute arising out of the Deed of Agreement executed by the deceased and on the permission granted by the Durbar to the respondent to stay in three rooms of the disputed house. When the genuineness of this document is not disputed by the respondent and when he did not establish that this Deed of Agreement is not the Will in question, 1 am of the view that Ext. 10 probablised the case of the appellant and that he never concealed the existence of the Will and that the respondent in 1977 already knew the execution of the Will by their father bequeathing all his properties to the appellant. Therefore, the suspicious circumstances on the execution of the Will harped on by the learned Counsel for the respondent is non-existent. Moreover, the allegation of the respondent that the testator was not seriously ill and not in the state of disposition at the time of execution of the Will has also been belied by the letter dated 04.04.76 written by himself, which is at Ext. 6. The genuineness of this letter is also not questioned by the respondent. In this letter, the respondent clearly mentioned that his father (the testator) had gone from Shillong 'for the treatment of your eyes.' If the testator was really suffering from other illness which was serious in nature, he could have mentioned the same at that time. The finding of the trial that the testator was not mentally and physically fit to execute the Will is, therefore, wholly erroneous. Once the statement of the appellant that the testator was mentally and physically fit, stood corroborated by a disinterested witness like PW No. 3, the onus to prove that he was actually unfit and not in a state of disposition, is upon the respondent. Moreover, if the respondent alleged fraud or undue influence in respect of the execution of the Will in question, the onus is squarely upon him to prove the same.
12. That apart, there are some circumstances appearing in the evidence, which lend credence to the version of the appellant. In the first place, it is in evidence that the appellant never was in Shillong and not a Jansath when the Will was executed by the testator, which clearly indicates that he never participated in the execution of the Will. Secondly, the statement of the appellant that he cleared the loan amount outstanding against his father and constructed three rooms in the ground floor and the second floor at the expense of Rs. 60,000/- incurred by him, which was never objected to by the respondent, and further that he alone collected the rent for the rooms from all the tenants have not been denied by the respondent. The recitals in the Will made by the testator that it was Dharam Deo Verma (the appellant) alone who looked after and took care of him whereas his other sons were not taking care of him and avoided him, are not disputed by the respondent. Under the circumstances, it is only natural that the testator chose the appellant alone to inherit all his properties. Thus, on the facts found, there are hardly any suspicious circumstances attached to the Will. Therefore, a review of the entire evidence in the case that due execution and attestation of the Will in dispute has been proved as pleaded by the propounder, the appellant is, therefore, entitled to the grant of probate. In my judgment, the findings of the trial Court are not only contrary to the evidence on record but also overlooked the law governing the aspects of proof of will.
13. The result of the foregoing discussion is that this appeal succeeds. The impugned judgment and order is set side. The Will accordingly stands probated in favour of the appellant. However, on the facts and circumstances of the case, the parties are directed to bear the costs of litigation throughout.