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Bhagat Ram And Anr vs Suresh And Ors on 25 November, 2003

Supreme Court of India Bhagat Ram And Anr vs Suresh And Ors on 25 November, 2003Bench: R.C. Lahot1, Ashok Bhan

CASE NO.:

Appeal (civil) 13711 of 1996

PETITIONER:

BHAGAT RAM AND ANR.

RESPONDENT:

SURESH AND ORS.

DATE OF JUDGMENT: 25/11/2003

BENCH:

R.C. LAHOT1 & ASHOK BHAN

JUDGMENT:

JUDGMENT

2003 Supp(6) SCR 216

The Judgment of the Court was delivered by

R.C. LAHOTI, J. Bhagat Ram and Chhaju Ram , the appellants, are the sons of late Mast Ram. Muni Devi, respondent No. 3, is the widow of late Mast Ram. It is not clear whether the two appellants were born to Mast Ram from Muni Devi or he had another wife too, but that is not very material for the present case. Suresh and Tilak Raj respondents No. l and 2, are the purchasers of the suit property from Muni Devi.

On 16.5.1973, late Mast Ram executed a Will in favour of Muni Devi appointing her the sold heir of his property. The Will also states that the appellants have been living separately from Mast Ram for a period of 26-27 years prior to the date of the Will and they have been given other property propor_ionate with their share and as Muni Devi was residing with him and also serving him in his old age, he was appointing her the sole heir and successor of his property. The Will, as executed on 16.5.1973, bears the signature of Mast Ram and is attested by two witnesses namely Sanya Brahman and Kewal Ram Brahman who have respectively thumb marked and signed the Will by way of attestation.

The Will was presented for registration on 21.5.1973. It appears that the registration of the Will was done on commission as the endorsement made by the Registrar of Deeds on The Will indicates that the Will was presented by the executant at 4.30 p.m. at his residence. Now commences the controversy.

Vijay Singh Negi, the Registrar of Deeds, read but and explained the contents of the Will to the executant Mast Ram who admitted the execution of the Will but made an oral statement to the Registrar which is in departure from the contents of the Will. Just below the endorsement relating to presentation of the Will, the Registrar has recorded the statement made by Mast Ram. This statement is signed by Mast Ram and attested by one witness namely Ram Dutt. Vijay Singh Negi, the Registrar of Deeds, has also put his signature below the endorsement which incorporates the statement made by Mastram. Translated into English, the endorsement made by the Registrar incorporating the statement of Mast Ram reads as under :

“The contents of the Will was read over and explained to Shri Mast Ram and he admitted the contents of the same as correct. But he stated that the land shall remain in the name of the executrix during her life time Bhagat Ram and Chajju Ram will serve her. After her death it shall go to the share of Bhagat Ram and Chajju Ram and till that time they shall have no right in the property mentioned in this Registered document. Identification of executor of this will was made by Shri Ram Dutt resident of Nehnar in may presence.

Sd/- Mast Ram Sd/- and Seal

Sd/- Ram Dutt Sub-Registrar

Jubal,

Dated 21.5.1973″

(N.B. Translation is as furnished by the appellant and not disputed by the respondents)

Thereafter the Will was registered.

Mast Ram died. The Will came into effect. Muni Devi got her name mutated over the agricultural land left by late Mast Ram in the revenue papers. Muni Devi, claiming the vesting of late Mast Ram’s property exclusively in herself and thereby having acquired sole and exclusive ownership in the property of late Mast Ram, transferred the land by a registered Deed of Sale in favour of respondents No. l and 2. The Sale Deed was executed and registered on 29/31.5.1975. The appellants filed a civil suit for declaration of title, and for issuance of preventive injunction by way of consequential relief, against the respondents No. l and 2, also impleading the respondent No. 3 as a party to the suit. According to the plaintiffs, the Will dated 16.5.1973. registered on 21.5.1973, has to be read alongwith the statement made by late Mast Ram and recorded by the Registrar of Deeds. The two formed part of one document and have to be read together and if so read Muni Devi succeeded only to a life estate without any right to alienation and the reversion vested in the appellants. Muni Devi could not have sold away the land and, therefore, no right and title in the property accrues to the respondents No. l and 2. Obviously, the defendants defended the Will and submitted that the Will was only that part of the document which was executed on 16.5.1973 while the statement made before the Registrar on 21.5.1973 was liable to be ignored so far as the efficacy of the Will dated 16.5.1973 is concerned.

The suit filed by the plaintiffs has been dismissed by the trial Court. The decree of the trial Court has been upheld by the first appellate Court as also by the High Court. The plaintiffs have filed this appeal by special leave.

We have heard Shri E.C. Agrawala, the learned counsel for the appellants and Shri B.B. Sawhney, the learned senior counsel for the respondents No. l and 2. It was conceded at the Bar that the document executed by late Mast Ram and attested by two witnesses on 16.5.1973 is a Will. There is no controversy raised at any stage of the proceedings that the said document was a Will duly executed by the testator and attested by the witnesses. The controversy centers around the proof and effect of the statement made by Mast Ram before the Registrar of Deeds on 21.5.1973 and incorporated by the Registrar in his endorsement made on the will. It was also conceded to at the Bar that the statement of Mast Ram dated 21.5.1973 recorded by the Registrar and attested by the witness Ram Dutt may amount, in the eye of law, to a codicil. In the submission of the learned counsel for the appellants, the Will has been registered alongwith the codicil forming an integral part thereof and it is not necessary for a codicil to be attested by two witnesses. Assuming that a codicil is required to be attested by two witnesses in the same manner as a Will is required to be made then the signature of Mast Ram placed alongwith the signature of Ram Dutt, the attesting witness, and the signature of Registrar of Deeds side by side, amounts to attestation of codicil and inasmuch as Ram Dutt and Vijay Singh Negi, the Registrar of Deeds, have both attested the codicil, the codicil has to be given effect to as duly executed.

Ram Dutt and Vijay Singh Negi. the Registrar of Deeds, none has been examined in the Court in proof of attestation of the codicil. It was submitted by the learned counsel for the appellants that the registration of the document dispenses with the necessity of examining the attesting witnesses and the endorsement made by the Registrar on the Will and codicil, incorporating the admission of the testator on the point of execution of the Will and as to which presumption of regularity and correctness attaches dispenses with the need of formally proving the Will and the codicil which must be read together as parts of one one the same document.

Three questions arise for consideration in this appeal :

(1) Whether the formalities attaching with the execution of Will need to be carried out in relation to a codicil also, and if so, whether a codicil is also required to be proved in the same manner as a Will?

(2) Whether a Registrar of Deeds can also be an attesting witness?

(3) Whether registration of a Will or codicil dispenses with the need of proving the execution and attestation of Will in the manner required by Section 68 of the Evidence Act?

Question – l :

‘Will’ and ‘codicil’ are defined respectively in clauses (h) and (b) of Section 2 of the Indian Succession Act, 1925 as under :

“(h)’Will’ means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death;

(b) ‘codicil’ means an instrument made in relation to a will, and explaining, altering or adding to its depositions, and shall be deemed to form part of the will;”

Section 63 provides, by enacting the rules, for the manner in which an unprivileged will (the class to which the Will in question belongs) shall be executed. The rules are as under :

Succession Act. 1925

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 ii 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.”

It is also relevant to refer to Section 70 which provides that no unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing. or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. (emphasis supplied) In Section 64 of the Succession Act also we find a reference to due attestation of a Will or codicil both. It is provided that if a testator, in a will or codicil duly attested, refers to any other document then actually written as expressing any part of his intentions, such document shall be deemed to form a part of the will or codicil in which it is referred to. (emphasis supplied)

According to Section 68 of the Evidence Act, 1872 a document required by law to be attested, which a will is, shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if available to depose and amenable to the process of the Court. The proviso inserted in Section 69 by Act No. 31 of 1926 dispenses with the mandatory requirement of calling an attesting witness in proof of the execution of any document to which Section 68 applies if it has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied. However, a Will is excepted from the operation of the proviso. A Will has to be proved as required by the main part of Section 68. It is true that Section 68 of Succession Act does not specifically speak of codicil and that omission has prompted the learned counsel for the appellants to urge that the applicability of Section 68 abovesaid should be treated as confined to the execution of Wills only. A codicil need not necessarily be attested and, therefore, a codicil need not be proved in the manner contemplated by the main part of Section 68 of the Evidence Act; a codicil will attract applicability of the proviso, submitted the learned counsel for the appellants. In our opinion, such a submission cannot be countenanced. Williams states in The Law of Wills, Vol. l (1987 Edn.)

“Codicils which in form and execution are similar to a will are useful for the purpose of making slight alterations to a will, such as a change of executors or deleting some specific gift. Codicils may be used for making any alteration in a will, but it is so easy to fail to see that a substantial alteration so made will affect parts of the will other than that intended to be affected, that it is a wise practical rule to execute a .new will whenever any substantial alteration is intended, it may, in cases of urgency, be more practical to execute a codicil than to prepare a new will………the codicil is executed and attested in the same way as a will. (at p. 161)

Execution of codicil. The same rules apply as in the case of wills. (at p. 165)”

Mantha Ramamurthi’s Law of Wills (Sixth Edition) also states (at page 322) that a codicil for its validity, must be executed and attested in the same manner as a Will.

Any Indian decision or authority taking a view. contrary to the one taken by the abovesaid learned authors. has not been brought to our notice. Codicil, as defined, is an instrument made in relation to a Will. It has the effect of explaining, altering or adding to the dispositions made by a Will. By fiction of law. the codicil, though it may have been executed separately and at a place or time different from the Will, forms part of the related Will. That being the nature and character of codicil, flowing from the definition itself. it would be anomalous to accept the contention that though a Will is required to be executed and proved as per the rules contained in the Succession Act and the Evidence Act but a document explaining, altering or adding to the will and forming part of the will is not required to be executed or proved in the same manner. Section 70 of the Succession Act re-enforces this proposition inasmuch as revocation of an unprivileged Will or codicil is placed at per in the matter of manner of

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