L. Narasimha Reddy, J.
1. In this appeal, the judgment and decree of the Court of the Subordinate Judge, Nandyal, in O.S.No. 104 of 1989, is in challenge. The plaintiff is the appellant. The parties will be referred to as arrayed in the suit.
2. The plaintiff filed the suit claiming that she is the 2nd wife of late Bala Venkata Reddy (for short 'BV Reddy'), the 1st wife, late Eswaramma died some time during 1974 and BV Reddy died on 17-4-1988. It is her case that late B.V. Reddy was the absolute owner of the suit schedule properties, he died intestate and she succeeded to the suit schedule properties.
3. It is the case of the plaintiff that the 1st defendant had laid claim to the properties of her husband under a Will dated 19-11 -1978 said to have been executed by her husband. She stated that the alleged Will is not true and genuine and was brought into existence by the 1st respondent. She has also denied the claim of the 1st defendant to be foster son of her husband. She narrated the various acts resorted to by the defendants for dispossessing her from certain items of properties. Reference was also made to the efforts made by the elders of the village to impress upon the defendants not to interfere with the rights of the plaintiff. With these pleadings, she prayed for a decree declaring her title to the suit schedule properties, permanent injunction in respect of item No. 1 and recovery of possession as regards items 2 to 7 of the schedule properties. She has also prayed for mesne profits.
4. The 1st respondent filed a written statement disputing the very factum of the marriage of the plaintiff with late B.V. Reddy. According to him, since late B.V. Reddy could not beget any children through his 1st wife Eswaramma, who is his paternal aunt, with the consent of Eswaramma, the plaintiff lived with late B.V. Reddy and no marriage took place between them. It was his specific case that he was brought up by late B.V. Reddy and during his life time late B.V. Reddy executed a Will dated 19-11 -1978, deposited the same in a sealed cover with the District Registrar, Kurnool. Since B.V. Reddy did not have issues, he made several dispositions under the Will in favour of various persons related to him including the plaintiff and the 1st defendant. The 1st defendant pleaded that the Will was genuine and there are no suspicious circumstances surrounding the Will. He has also taken a plea that even if it is to be assumed that the plaintiff married late B.V. Reddy, the same was void since it has taken place during the subsistence of his marriage with Eswaramma.
5. Defendants 2, 3 and 5 filed separate written statements, broadly on the same lines. Defendants 4 and 6 were set exparte.
6. On the basis of the pleadings, the trial Court framed the following issues and additional issues:
'(1) Whether the plaintiff is the sole heir to late Bala Venkata Reddy entitled to declaration and possession as prayed for?
(2) Whether the Will dated 19-11-1978 is true, valid and binding on the plaintiff?
(3) Whether the suit is bad for nonjoinder of necessary parties?
(4) To what relief?
Additional issues:-
(1) Whether the plaintiff is the legally wedded wife of late Yerasi Bala Venkata Reddy and has the status of the wife to claim his property by succession?
(2) Whether the Will dated 19-11-1978 executed by Bala Venkata Reddy is true, valid, and if so whether this suit is maintainable?
(3) Whether the dispossession of the property as envisaged in the Will dated 19-11-1978 are binding on the plaintiff?
(4) Whether the plaintiff is entitled to mesne profits?
(5) To what relief?'
On behalf of the plaintiff, P.Ws 1 to 3 were examined and no documents were marked. On behalf of the defendants, D.Ws. 1 to 10 were examined and documents Exs. B-1 to B-10 were marked. Apart from the same, Ex.X-1 was also marked.
7. The trial Court held that no valid and legal marriage took place between the plaintiff and B.V. Reddy and that the Will dated 19-11-1978 (Ex.B-1) is valid and enforceable. In view of these findings, the trial Court dismissed the suit. Hence this appeal.
8. Sri E. Eyapu Reddy, learned senior counsel for the appellant/plaintiff submits that there was absolutely no material in the form of oral or documentary evidence before the trial Court to enable it to conclude that the marriage between the plaintiff and late B.V. Reddy was not lawful in any way. According to him, though the 1st defendant disputed the very taking place of marriage between the plaintiff and late B.V. Reddy in his oral evidence, he has categorically admitted that the marriage infact took place between them. Unless it was established through acceptable and reliable evidence that the marriage was hit by any provisions of law, it was not open to the trial Court to assume that the marriage is void. It is also his contention that the Will under Ex.B-1 was not proved as required under law. According to him, the dispositions under the Will are unnatural, the signature of the testator late BV Reddy was not proved and the attestation on the same does not conform to the provisions of the Indian Succession Act. On the basis of these submissions, he says that the decree of the trial Court cannot be sustained and that the suit ought to have been decreed as prayed for.
9. Sri C. Sadasiva Reddy, learned senior counsel for the respondents/defendants, on the other hand, submits that if the dates or years that are furnished by the plaintiff herself or her other witnesses are to be taken into account, the conclusion that the marriage took place only in the year 1951 or subsequent thereto is inescapable and having regard to the provisions of the Hindu (Prohibition of Bigamy) Act, 1949 (for short 'the Bigamy Act') the marriage between the plaintiff and late B.V. Reddy is void. It is his further contention that EX.B-1 was executed by late B.V. Reddy in a sound disposition of mind and he ensured equitable distribution of the properties among his relations since he had no children. The learned counsel submits that the contents of the Will, the manner in which it was deposited with the Registrar and the attestation on the cover in which the Will was enclosed would clearly demonstrate that there are no suspicious circumstances surrounding the same. As regards attestation, he submits that the scribe of the document has also figured as the 2nd attestor and there is compliance with the provisions of Section 63 of the Indian Succession Act. Inasmuch as neither the scribe nor the attestor were alive, the persons who were acquainted with their signatures were examined as witnesses and that constituted sufficient proof of the Will. Finally, he submits that the trial Court had taken into account the evidence on record as well as the provisions of law, properly appreciated the same and arrived at a just and proper conclusion.
10. In this appeal, the questions that fall for consideration are-
(1) Whether the plaintiff is the legally wedded wife of late B.V. Reddy?
(2) Whether the Will under Ex. B-1 is true, valid and enforceable in law?
11. The plaintiff pleaded that late B.V. Reddy married Eswaramma and since he could not beget any children through her, he married her (plaintiff). It is her case that her marriage with late B.V. Reddy was performed in Sri Ram Temple at Sirivilla, Yerraguntla. According to her, it took place about 45 years before 1992 when she deposed.
12. The very factum of the marriage of the plaintiff with late B.V. Reddy was strongly denied by the 1st defendant in his written statement. According to him, the plaintiff lived with late B.V. Reddy on account of the fact that he did not have children through his first wife Eswaramma, though no marriage took place between the plaintiff and B.V. Reddy. He stated as under:
'The plaintiff joined late Bala Venkata Reddy in or about the year 1952 and since then the plaintiff began to live with late Bala Venkata Reddy along with Eswaramma. In fact, no marriage was solemnized in between the plaintiff and late Bala Venkata Reddy.'
However, in his deposition as DW.1, the 1st defendant stated as under:-
'In 1951 P.W.1 (plaintiff) married by paternal uncle Yerasi Balavenkatareddy at Sivaram in her parents house.'
With this statement in the chief-examination, the factum of marriage of the plaintiff with late BV Reddy remains no longer in doubt. However, a semblance of illegality is sought to be attached to the same on the ground that it is hit by the provisions of the Bigamy Act. If the marriage of the plaintiff with B.V. Reddy is sought to be treated as violative of the provisions of the said Act, the minimum that is expected from the party who is disputing the same is to plead and establish that the said marriage took place subsequent to the coming into force of the said Act. On this aspect, the pleadings from the side of the defendants started with the very denial of the existence of the marriage. It was only as an alternative plea that they have pleaded that even otherwise the marriage of the plaintiff with late B.V. Reddy is void since it has taken place during the subsistence of the 1st marriage with Eswaramma. They did not plead that the marriage has taken place prior to the commencement of the Bigamy Act. The pleadings in this regard is as under:
'The defendants submit that the plaintiff is not a legally wedded wife of late Bala Venkata Reddy. This defendant submits that even assuming without admitting that the plaintiff got married to late Bala Venkata Reddy, the alleged marriage with late Bala Venkata Reddy will be void during the subsistence of the marriage of Eswaramma with Bala Venkata Reddy. Therefore, the plaintiff herein is not at all a heir of late Bala Venkata Reddy.'
It was not even suggested to the plaintiff when she deposed as PW.1 that her marriage with late B.V. Reddy took place subsequent to coming into force of the Bigamy Act. No one acquainted to the said marriage was examined to establish that the marriage took place subsequent to 1949. It was only the 1st defendant as D.W.1 who made an attempt to claim that the marriage took place subsequent to 1949. As stated earlier, having denied the very marriage in the written statement, in the deposition he stated that it took place in 1951. P.W.1 stated that her marriage took place at a temple at Yerraguntla. It was the case of D.W.1 that the marriage took place in 1951 at Sri Ram temple. The source of information of this fact for D.W.1 is as under:-
'While I was studying 10th class at the house of late B. Venkatareddy I heard that marriage of P.W.1 was celebrated with B. Venkatreddy in the year 1951 during the dialogue between P.W.1 and his husband in 1974.'
Except this, there is no other evidence to throw light on this aspect.
13. The marriage of the plaintiff with late B.V. Reddy could be branded as illegal by declared as void if only it was specifically pleaded and established that it had taken place subsequent to the enactment of the Bigamy Act and that it was hit by the provisions of the said Act. Such a fact constituted a mixed question of fact and law. It is only on pleadings and establishing such a fact that the consequences in law on the basis of the said fact flow. Declaration of a marriage either as illegal or void visits the concerned person with drastic and horrendous consequences. Children will be bastardized. The position of the concerned lady will fall down from that of a wife to an unholy relation with the man. Rights of succession cease to be applicable. Such drastic consequences cannot be permitted to ensue on the basis of inconsistent pleas and halfhearted evidence. It is not in dispute that the plaintiff lied with late B.V. Reedy for decades together even on the showing of the defendants. In this context, it is apt to refer to the judgment of the Hon'ble Supreme Court in Badri Prasad v. Dy. Director of Consolidation and Ors., : [1979]1SCR1 wherein their Lordships held as under:-
'A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy. In this view, the contention of Shri Garg, for the petitioner, that long after the alleged marriage, evidence has not been produced to sustain its ceremonial processes by examining the priest or other witnesses, deserves no consideration. It men and women who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence hat they were validly married, few will succeed. The contention deserves to be negatived and we do so without hesitation. The Special Leave Petitions are dismissed.'
14. It is, therefore, evident that neither the defendants were able to establish that the marriage of P.W.1 with late BV Reddy took place subsequent to 1949 nor were they able to prove that the said marriage is hit by any provisions of law. Therefore, the finding of the trial Court that the marriage was illegal and unlawful cannot be sustained and deserves to be reversed.
15. Now remains the question as to the validity of the Will - Ex.B-1. The grounds of attack by the learned counsel for the plaintiff are three-fold, viz., that the disposition is unnatural, the Will does not conform to the provisions of Section 63 of the Indian Succession Act and the signature of the testator was not proved.
16. The 1st ground should not detain us for long having regard to the fact that if the Will is otherwise valid and proved, the fact that the disposition is not equitable by itself does not constitute a ground. In fact by its very nature, the disposition under a Will brings about altogether a different devolution of properties, which will be totally and radically different from the one under ordinary Laws of Succession. As long as the law permits the testator to do so, no exception can be taken to the same.
17. The 2nd contention raised by the learned counsel for the plaintiff is very important. He submits that only one witness attested the Will Ex.B-1 and the same does not constitute compliance with Section 63 of the Indian Succession Act to bring about an enforceable Will. The learned counsel for the defendants, on the other hand, submits that in addition to one attesting witness, the scribe has also signed as another attesting witness and the same be taken as compliance with the provisions of law.
18. As far as the requirement in law is concerned, Section 63 of the Indian Succession Act stipulates conditions to be complied with for making a valid Will. Section 63 reads as under:--
'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 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 acknowledgment of his signature or mark, or of he 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.'
While Clauses (a) and (b) deal with the signing of the Will by the testator and the manner in which the signature is to be made, Clause (c) deals with the requirement of attestation. From the language of that provision, it is very clear that the Will shall be attested at least by two witnesses in he presence of the testator. It should also be evident that the attestors have seen the testator having signed or affixed mark. Section 68 of the Evidence Act deals with the method of proving the execution of a document, where the same is required in law to be attested. It provides that such document shall not be used as evidence unless at least one attesting witness has been called for the purpose of proving its execution, if there is any attesting witness alive. In this case, neither the person who attested Ex.B-1 nor the scribe were alive.
19. It needs to be noticed that in Ex.B-1, after the signature of the testator Y. Bala Venkata Reddy, one Mapalle Venakt Reddy subscribed his signature as witness. He subscribed his signature against the numerical '1'. After that, what all is apparent is a statement to the effect that K. Venkappa has prepared and scribed the document and after this statement, the scribe put his signature. In the next line, his particulars are given as 'State licence No. 13/74, Renewal No. 234/78, Nandyala'.
20. The learned counsel for the defendants submits that inasmuch as the scribe had signed after the 1st attesting witness, the same can be treated as the 2nd attestation.
21. Attestation has a significant meaning and a special purpose to serve. It differs in many respects from a person's signature as mere witness. Unless the person subscribed the signature has the animo attestandi he cannot answer the description of an attestor. It should be evident that the person who subscribed he signature has the intention of attesting the document, in contra distinction to mere figuring as a witness. The observation of Hon'ble Supreme Court in Abdul Jabbar v. Venkata Sastri, : [1969]3SCR513 is apt to be extracted:
'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 acknowledgment 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 acknowledgment 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'.
This decision was followed by this Court in G. Rajyalaxmamma v. R. Satyavani, 1970(2) An.W.R. 88. Dealing with the evidence of PW.1, who was a scribe and whose signature was sought to be treated as attestor, this Court observed as under:--
'From the whole of the evidence of P.W. 1 extracted above, there is nothing to show that he put his signature on the document not only as scribe but he had also the intention of attesting the execution of the document. On the other hand the evidence shows that he put his signature only to show that the document has been written by him. That being so, P.W. 1 is not an attesting witness. His evidence is not sufficient under the provision of Section 68 of the Indian Evidence Act, to prove the execution of the document.'
It is also relevant to refer to almost a similar observation made by the Hon'ble Supreme Court in Girja Datt v. Gangotri Datt, : AIR1955SC346 :
'It cannot be presumed from the mere signatures of two persons appearing at the foot of the endorsement of registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68, Indian Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the Will. This provision should have been complied with in order that these two persons might be treated as attesting witnesses.'
To the same effect is the decision of this Court in K. Nookaraju v. Venkatarao, : AIR1974AP113 . Recently the Hon'ble Supreme Court had an occasion to deal with the similar question in N. Kamalam v. Ayyasamy, : AIR2001SC2802 . After referring to the Full Bench judgment of the Madras High Court in : AIR1962Mad111 and discussing the facts of the case before it, the Hon'ble Supreme Court held:
'The animus to attest, thus, is not available so far as he scribe is concerned. He is not a witness to the Will but a mere writer of the Will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the Court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be proof of due attestation unless the situation is so expressed in the document itself.'
In the cases referred to above, there were attesting witnesses sufficient in number. The controversy was as to whether the examination of a scribe and not attesting witness would satisfy the requirement of Section 68 of the Indian Evidence Act. In the present case, neither Ex.B-1 was attested by two independent attesting witnesses, nor the scribe is examined, obviously because he was no more. A reading of the observations made in the precedents referred to above indicates that attestation has a significant purpose to serve and the same cannot be a matter of implication. Even assuming that there is no prohibition in law for a scribe to figure as an attesting witness, it should be evident from the document itself and needs to be explained beyond any pale of doubt with cogent evidence that the scribe, apart from preparing and writing the document had also attested the signature of the executant of the document.
22. One significant aspect to be noted is that the scribe will write the document and put his signature, certifying the factum of his having written the same. His duty ends there. In many cases, a scribe may not even be present when the parties and the witnesses sign the document. To subscribe his signature as scribe, he need not wait till the parties to the transaction and witnesses subscribe their signatures. On the other hand, the attestor is required to wait till the executant puts his signature and only after the executant signs it, the attestor has to sign in token of his having seen the executant sign the document. This eventuality cannot be contemplated in respect of a scribe who puts his signature only as a scribe and nothing more. His signature precedes that of that executant and, as such, cannot constitute attestation. For a scribe to figure as attestor, it should be evident from the document itself as well as the evidence to the effect that having completed the writing of the document, he has seen the executant signed the document, and thereafter subscribed his signature as attestor.
23. From the evidence on record, it is too difficult to discern that the scribe of Ex.B-1 figured as the attestor. Not only no one spoke to that fact, but nothing is evident from the record that he attested the document. There is another circumstance, which lends support to the contention of the learned counsel for the plaintiff. Ex.X-1 is a sale deed scribed by K. Venkappa, the same person, who scribed Ex.B-1. In Ex.X-1, the vendor signed the document and thereafter two witnesses signed. At the bottom of the same, as in Ex.B-1, the scribe makes a statement that he has prepared and written the document, subscribed his signature after that sentence and furnished the details of his licence. It shows that the endorsement made, signature subscribed and particulars of licence furnished by the said scribe, is the usual pattern adopted by him for certifying the factum of his scribing the documents. Therefore, neither from the document nor from the evidence, it emerges that the scribe figured as an attesting witness in Ex.B-1. In view of this finding, what emerges is that only one witness attested Ex.B-1. The same does not constitute compliance with Section 63 of the Indian Succession Act. That being so, Ex.B-1 becomes unenforceable in law.
24. The learned counsel for the plaintiff submits that it was not even established that late BV Reddy has signed on Ex.B-1. Five witnesses spoke about the signature of B.V. Reddy. D.W.1 (D-1), D.W.6 (D-2) and D.W.8 (D-5) are the party witnesses. None of them claimed to have seen late B.V. Reddy having signed Ex.B-1. Apart from that, they being the beneficiaries under the document, their evidence cannot be taken on its face value. The two non-party witnesses are D.W.2, who is said to be he farm servant of late B.V. Reddy and D.W.5, who is said to be acquainted with late B.V. Reddy. It has been elicited in the evidence of D.W.2 that he is an illiterate. His evidence is only to the effect that the signature of late B.V. Reddy on Ex.B-1 belongs to him (B.V. Reddy). He does not say that he was present when the document was signed. So far as D.W.5 is concerned, he only says that he was acquainted with the signature of late B.V. Reddy and on that basis he can say that the signature on Ex.B-1 belongs to B.V. Reddy alone. Even if the statement made by D.W.5 in the Chief-Examination is taken be correct, it is too difficult to accept that he answers the description of a person 'acquainted with the handwriting' of late B.V. Reddy, as contemplated in Explanation to Section 44 of the Indian Evidence Act.
25. It is settled principle of law that in case of testamentary documents, the propounder has not only to prove the execution of the document as required in law, but also has to prove that there are no suspicious circumstances surrounding the same. In this case, it has already been held that Ex.B-1 does not conform the requirements of law. Apart from that, the Will itself is shrouded in several suspicious circumstances. While the plaintiff, who undisputedly lived with late B.V. Reddy for 45 years, was provided with life interest with no right of transfer in respect of a small extent of Ac.4-40 cents, which was to revert to the defendants after her death, all the defendants, most of whom were even distant relations, were vested with absolute rights. The fact that D.W.1 so swiftly swings into action to get the document registered and dispossess the plaintiff, throws any amount of doubt about the genuinety of the transaction. The denial of the very marriage between the plaintiff and late B.V. Reddy throws doubt on his bona fides.
26. From the foregoing discussion, it is evident that the plaintiff was the legally wedded of late BV Reddy, she succeeded to his estate after his death, she got title to the suit schedule properties, Ex.B-1 is neither a validly executed nor legally enforceable document and that the plaintiff is entitled to the relief claimed in the suit.
27. Accordingly, the appeal is allowed and OS. No. 104/89 on the file of the Subordinate Judge, Nandyal, shall stand decreed. However, having regard to the relationship of the parties, there shall be no order as to costs.