AO/17/2014 of SAMUEL SINGH Vs GOPAL PRASAD ALIAS GOPAL MASSEY

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

AO No. 17 of 2014

Samuel Singh S/o Late Mohan Singh

R/o Sanjay Colony, Opposite Chaudhary Bhawan

Bhotia Parao, Tehsil Haldwani, District Nanital

..................Appellant

-versus-

1.Gopal Prasad alias Massey S/o Sri Prem Ram

R/o Mission Church Compound, Nainital Road, Haldwani District Nainital. District Nainital.

2.Km. Kiran Prasad D/o Sri Gopal Prasad @ Gopal Massey

3.Km. Arun Prasad D/o Sri Gopal Prasad @ Gopal Massey

4.Sri Devendra Singh S/o Gopal Prasad @ Gopal Massey

5.Sri Laxman Singh S/o Sri Gopal Prasad @ Gopal Massey No.2 to 5 all R/o Mission Church Compound, Nainital Road, Haldwani, District Nainital No.2 to 5 all R/o Mission Church Compound, Nainital Road, Haldwani, District Nainital

6.Sri Narendra Singh S/o Sri Bahadur Singh

R/o Village Chokuni, Tehsil- Ranikhet, Dist- Almora

7.Km. Vidhya Singh D/o Late Sri Bahadur Singh

8.Smt. Kalawati W/o Late Sri Bahadur Singh

9.Naveen Singh S/o Late Sri Bahadur Singh

Nos. 7 to 9 all R/o Villae Chokuni, Tehsil –Ranikhet,

District Almora

.............Respondent

Advocates appeared in the case:-

For Appellant : Mr. Pulak Agarwal, learned counsel for the appellant.

For Respondents : Mr. D.K.Joshi, learned counsel for the respondents.

AO No. 26 of 2013

Samuel Singh S/o Late Mohan Singh

R/o I.V.R. Izzatnagar, Bareilly (U.P.)

-versus-

..................Appellant

1.Gopal Prasad S/o Sri Prem Ram

R/o Church Compound, Nainital Road, Haldwani District Nainital. District Nainital.

2.Smt. Kalawati W/o Late Sri Bahadur Ram

3.Km. Vidhya Singh D/o Late Sri Bahadur Ram

4.Naveen Singh S/o Late Sri Bahadur Bahadur

5.Sri Narendra Singh S/o Sri Bahadur Ram

R/o Village Chokuni, Tehsil- Ranikhet, Dist- Almora

.............Respondents

Advocates appeared in the case:-

For Appellant appellant.

: Mr. Pulak Agarwal, learned counsel for the

For Respondents respondents.

: Mr. D.K.Joshi, learned counsel for the

Date of hearing and Judgement : 29.11.2021

Sri S.K.Mishra, J.

1.Heard Pulak Agarwal, learned counsel for the appellant and Mr. D.K.Joshi, learned counsel for the respondents. appellant and Mr. D.K.Joshi, learned counsel for the respondents.

2.These two appeals arise out of the common judgement passed by the learned Civil Judge(S/D), Nainital in Succession Case No. 46 of 2005, whereby the application of the judgement passed by the learned Civil Judge(S/D), Nainital in Succession Case No. 46 of 2005, whereby the application of the

appellant/respondent no.1 under Section 372 of the Indian Succession Act, 1925 for grant of succession certificate was allowed.

Misc. Succession Application was filed by Sri Gopal Prasad alias Gopal Massey being the husband of late Premwati Singh (herein after referred to as ‘the legator’). Another case is filed by the brother of the legator praying for probate of the Will allegedly executed by legator on 2[nd]November, 2003. The learned Civil Judge (S/D) after taking into consideration the materials available on record came to conclusion that the Will cannot be acted upon. In this case, he took into consideration that though the attesting witness, namely, Vidya Nain Singh D/o Bahadur Singh was alive at the time of the trial, was not examined on behalf of the appellant as an attesting witness to prove the Will. The Will has been proved through scribe of the same, who happens to be professional typist. The learned Trial Court took into consideration the fact that PW2 P. C. Sanwal (typist) in the examination-in-chief, filed as an affidavit stated that the testator asked him to prepare Will as per her wishes and she gave instructions. However, in the cross-examination, he has stated that the testator had brought draft herself and handed it over to the witness, who typed the Will by means of the There to be clear Gopal Prasad alias Gopal Massey being the husband of late Premwati Singh (herein after referred to as ‘the legator’). Another case is filed by the brother of the legator praying for probate of the Will allegedly executed by legator on 2[nd]November, 2003. The learned Civil Judge (S/D) after taking into consideration the materials available on record came to conclusion that the Will cannot be acted upon. In this case, he took into consideration that though the attesting witness, namely, Vidya Nain Singh D/o Bahadur Singh was alive at the time of the trial, was not examined on behalf of the appellant as an attesting witness to prove the Will. The Will has been proved through scribe of the same, who happens to be professional typist. The learned Trial Court took into consideration the fact that PW2 P. C. Sanwal (typist) in the examination-in-chief, filed as an affidavit stated that the testator asked him to prepare Will as per her wishes and she gave instructions. However, in the cross-examination, he has stated that the testator had brought draft herself and handed it over to the witness, who typed the Will by means of the There to be clear typewriter. appears contradictions between these two statements. Moreover, Mr. P. C. Sanwal has stated that he has signed the Will as an attesting witness and he contradictions between these two statements. Moreover, Mr. P. C. Sanwal has stated that he has signed the Will as an attesting witness and he

stated so in his examination-in-chief. The reference to the documents reveals that he has not proved his signature as an attesting witness. Rather, one sentence is appearing in the document, which read as “typed by-P.C.Sanwal typist Courts Haldwani”. Even he has not proved this signature. Signature of this witness has not been exhibited in his examination-in-chief.

4.Another important aspect that appears very relevant to this Court is that though Smt. Vidya Nain Singh was alive at the time of trial of the case, (it is not known whether she is alive now or not), the appellant never made an attempt to secure her attendance for the purpose of examining her as an attesting witness. It is not the case of the appellant that summons were sent to her and in spite of sufficiency of summons, she did not appear in the court to depose in favour of the attestation of the Will. The only statement that has been made in this regard by the petitioner is that he requested the witness to come to the court but she expressed her un-willingness to come to the court. Such assertion in our opinion is not sufficient. In such cases, the witnesses’ attendance in the court could have been compelled through the process of the court and if she was not inclined to depose also, after taking due permission of the Court under Section 154 of the Indian Evidence Act, 1872, the witnesses could have been cross-examined by the petitioner. Such step has not been taken. In this

situation, this Court is of the opinion that the examination of only the scribe is not sufficient. examination of only the scribe is not sufficient.

Learned Pulak Agrawal, learned counsel appearing for the appellant/petitioner relies upon the case of Mathew Oommen vs. Suseela Mathew, (2006) 1 SCC 519, wherein practicing Advocate prepared the Will as scribe and also signed as an attesting witness, the Hon’ble Supreme Court held that examination of such an Advocate as an attesting witness is sufficient compliance of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. The Hon’ble Supreme Court held that there is no requirement in law that scribe cannot be an attesting witness. The persons concern appears in the witness box as PW and clearly states that he is scribe of the Will as well as the attesting witness of the Will. For attestation what is required is an intention to attest which is clear from the statement of the PW.

Leaned counsel Mr. D.K.Joshi, also relied upon judgment of the Hon’ble Supreme Court in N. Kamalam (dead) and another vs. Ayyasamy and another, (2001) 7 Supreme Court Cases 503. In para 26 of this judgement is as follows: judgment of the Hon’ble Supreme Court in N. Kamalam (dead) and another vs. Ayyasamy and another, (2001) 7 Supreme Court Cases 503. In para 26 of this judgement is as follows:

“26. The effect of subscribing 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 document, required attestation (admittedly in the case of will the same is required), is requirement of the statute, thus cannot be equated with that of the scribe. The full Bench judgment of the Madras High Court in H. Venkata Sastri and Sons and others v. Rahilna Bi and others (AIR 1962 Madras 111) wherein Ramachandra Iyer, J.

speaking for the full bench in his inimitable style and upon reliance on Lord Cambells observation in Burdett v. Spilsbury has the following to state pertaining to the meaning to be attributed to the word “attestation”:

(3)...............The definition of the term ‘attested’ which is almost identical with that contained in S.63 (c) of the Indian Succession Act, has been the result of an amendment introduced by Act 27 of 1926. Prior to that amendment it was held by this court that the word attested was used only in the narrow sense of the attesting witness being present at the time of execution. In Shamu Pattar v. Abdul Kadir ILR 35 Mad 607 (PC), the Privy Council accepted the view of this court that attestation of mortgage deed must be made by the witnesses signing his name after seeing the actual execution of the deed and that mere acknowledgement of his signature by the executant to the attesting witness would not be sufficient. The amending Act 27 of 1926 modified the definition of the term in the Transfer of property Act so as to make person who merely obtains an acknowledgment of execution and affixed his signature to the document as witness, an attestor. It will be noticed that although S.3 purports to define the word attested it has not really done so. The effect of the definition is only to give an extended meaning of the term for the purpose of the Act; the word attest is used as part of the definition itself. It is, therefore, necessary first to ascertain the meaning of the word attest independent of the statute and adopt it in the light of the extended or qualified meaning given therein. The word attest means, according to the Shorter Oxford Dictionary to bear witness to, to affirm the truth or genuineness of, testify, certify. In Burdet v. Spilsbury, (1842-43) 10 Cl and 340, Lord Cambell observed at page 417,

‘What is the meaning of an attesting witness to deed? Why, it is witness who has seen the deed executed, and who signs it as witness.’

The Lord Chancellor stated,

‘the party who sees the will executed is in fact witness to it; if he subscribes as witness, he is then an attesting witness’.

The ordinary meaning of the word would show that an attesting witness should be present and see the document signed by the executant, as he could then alone vouch for the execution of the document. In other words, the attesting witness must see the execution and sign. Further, attestation being an act of witness, i.e., to testify to the genuineness of the signature of the executant, it is obvious that he should have the necessary intention to vouch it. The ordinary meaning of the word is thus in conformity with the definition thereof under the Transfer of Property Act before it was amended by Act 27 of 1926. Before that amendment, admission of execution by

the executant to witness who thereupon puts his signature cannot make him an attestor properly so called, as he not being present at the execution, cannot bear witness to it; mere mental satisfaction that the deed was executed cannot mean that he bore witness to execution.

(4) After the amendment of S.3 by Act 27 of 1926, person can be said to have validly attested an instrument, if he has actually seen the executant sign, and in case where he had not personally witnessed execution, if he has received from the executant personal, acknowledgment of his signature, mark etc. Thus of the two significant requirements of the term attest, namely (1) that the attestor should witness the execution, which implies his presence, then, and (2) that he should certify or vouch for the execution by subscribing his name as witness; which implies consciousness and an intention to attest, the Amending Act modified only the first; the result is that person can be an attesting witness, even if he had not witnessed the actual execution, by merely receiving personal acknowledgment from the executant of having executed the document and putting his signature. But the amendment did not affect in any way the necessity for the latter requirement, namely, certifying execution which implies that the attesting witness had the animus to attest..”

7.From this reported case, it is clear what is important is the animus to attest. The evidence of PW2 does not reflect that he had the animus to attest rather he scribed the Will and signed as scribe of the Will. It is not reflected in the endorsement made by him that the executant had signed the Will in his presence. So in this case, there appears to be no animus on the part of the PW2 to attest the documents. Similarly, in the case of Janki Narayan Bhoir vs. Narayan Namdeo Kadam, AIR 2003 (1) Supreme 297, the Hon’ble Supreme Court has held that the High Court committed error on record by treating the scribe of the Will as an attesting witness without any basis.

8.Thus, from these two judgements of the Hon’ble Supreme Court, in which, the scribe has not been accepted as an attesting witness as it was found that scribe had no such animus to attest the document. In this case also, from the material available on record, there appears to be no animus on the part of the scribe to actually appear as an attesting witness for the executor. So, when the order witness to the Will was leading at the time of the trial relying only upon the evidence of the scribe to have attested the execution of the Will would have been an erroneous path of the trial court, and he has correctly not taken such view. Supreme Court, in which, the scribe has not been accepted as an attesting witness as it was found that scribe had no such animus to attest the document. In this case also, from the material available on record, there appears to be no animus on the part of the scribe to actually appear as an attesting witness for the executor. So, when the order witness to the Will was leading at the time of the trial relying only upon the evidence of the scribe to have attested the execution of the Will would have been an erroneous path of the trial court, and he has correctly not taken such view.

Our opinion is further fortified in this case from the fact that in case of Will, the attesting witness must not only see the executor signing the documents but the attesting witnesses must also state that the executor did understand the very purport and consequence of such document and thereafter he signed the same. In this case, only witness PW2 was examined on behalf of the appellant to attestation of the Will has also not stated in his examination-in-chief that the executor read the document and , or that it was read over and explained to her and then she signed the same.

10.Another important circumstance that militates against the execution of the Will is that by execution of such Will the executant at very advance stage after retirement from service, against the execution of the Will is that by execution of such Will the executant at very advance stage after retirement from service,

executed the Will by completely divesting the natural process of succession and bequeathing the entire property in favour of his brother. So taking into consideration the entirety of the case, especially, the facts and peculiarity discussed in the preceding paragraphs, this Court is of the opinion that there is hardly any scope of interference in this appeal and there is no need to set aside the order passed by the learned Additional Civil Judge (S/D). Moreover, there is another aspect of this case also. The Trial Court has the benefit of the observing the demeanour of the witness when the evidence was being recorded, an advantage which is not available to the appellate court. Upon observing the demeanour and recording the evidence when the Additional Civil Judge (S/D) has come to conclusion regarding non-acceptance of the evidence of the witness PW2, it is not proper of this Court to disturb such findings without proper and valid reasons. Mr. Agrawal though argued at length, was unable to satisfy the Court that the appreciation of the evidence undertaken by the Additional Civil Judge (S/D) is any way contrary to the records requiring interference of the appellate Court.

11.In that view of the matter, this Court finds no merit in the appeals. The appeals are therefore dismissed being devoid of merits. Interim orders of Stay stand vacated. merit in the appeals. The appeals are therefore dismissed being devoid of merits. Interim orders of Stay stand vacated.

12. There shall be no order as to costs.

13.Urgent certified copy of this order be granted on proper application. proper application.

(S.K.Mishra)

Judge

KKS