JAGDISH CHAND SHARMAversusNARAIN SINGH SAINI (DEAD) THROUGH HIS LRS. & ORS.

                      [2015] 6 S.C.R. 397


                 JAGDISH CHAND SHARMA                                A
                                v.
  NARAIN SINGH SAINI (DEAD) THROUGH HIS LRS. &
                      ORS.
           (Civil Appeal Nos.4181-4182 Of 2015)                      B

                         MAY01, 2015
       [KURIAN JOSEPH AND AMITAVA ROY, JJ.]
SuccessionAct, 1925-s. 63(c)-EvidenceAct, 1872-ss.                   c
68, 71 - Will - Execution of - Correctness and validity -
Execution of Will by testator as sole and absolute owner
amongst others of the relevant property - Said property
bequeathed in favo.ur of appellant out of love and affection
for him for the services rendered by him and was not                 D
 favourably disposed towards his sons for their disagreeable
 conduct and activitie_§ - Trial court granted letter of
 administration to the appellant vis a vis the said Will holding
that the Will had been validly executed by testator with a
sound state of mind in presence of two attesting witnesses           E
- High Court set aside the order- Interference with- Held:
Not called for- Evidence of attesting witnesses as a whole
is clearly deficient vis-a-vis with the requirements of s. 63 (c)
- Evidence of the said attesting witnesses and the Sub-
Registrar does not exhibit either denial of the execution of         F
the Will or their failure to recollect the execution, as a result,
s. 71 not attracted - Thus, evidence of the witnesses
anlaysed collectively or in isolation, does not evince animo
attestandi, an essential imperative of valid attestation of a        G
Will - Further; the materials on record do not present a
backdrop, wherein the testator would have preferred
appellant to be the legatee of his property - Bequest is
exfacie unnatural, unfair and improbable - Suspicious
circumstances attendant on the disposition do militatively           H
                              397.
398        SUPREME COURT REPORTS                 [2015) 6 S.C.R.


A impact upon the inalienable imperatives of solemnity and
      authenticity of any bequest to be effected by a testamentary
      instrument.
            Dismissing the appeals, the Court
B
          HELD: 1.1 AWill, as an instrument of testamentary
  disposition of property, being a legally acknowledged
  mode of bequeathing a testator's acquisitions during
  his lifetime, to be acted upon only on his/her demise, it
c carries with it an overwhelming element of sanctity. As
  understandably, the testator/testatrix, as the case may
  be, at the time of testing of the document for its validity,
  would not be available, stringent requisites for the proof
  thereof have been statutorily enjoined to rule out the
o possibility of any manipulation. This is more so, as many
  a times, the manner of dispensation is in stark departure
  from the prescribed canons of devolution of property to
  the heirs and legal representatives of the deceased. The
  rigour of Section 63 (c) of the Succession Act, 1925 and
E Section 68 of the Evidence Act, 1872 is thus, befitting
  the underlying exigency to secure against any self
  serving intervention contrary to the last wishes of the
  executor. [Para 45] [434-C-F]

F         1.2 It is evident from the contents of Section 63
  of the Act, that to execute the Will as contemplated
  therein, the testator would have to sign or affix his mark
  to it or the same has to be signed by some other person
  in his presence and on his direction. Further the
G signature or mark of the testator or the signature of the
  person signing for him, has to be so placed that it would
  appear that it was intended thereby to give effect to the
  writing as Will. The Section further mandates, that the
  Will shall have to be attested by two or more witnesses,
H each of whom has seen the tP.stator sign or affix his
  JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI                  399
        (DEAD) THROUGH HIS LRS. & ORS.

mark to It or has seen some other persons sign it, in the      A
presence and on the direction of the testator, or has
received from the testator, personal acknowledgement
of a signature or mark, or the signature of such other
persons and that each of the witnesses has signed the
Will in the presence of the testator. It is, however           B
clarified, that it would not be necessary, that more than
one witness be present at the same time and that no
particular form of attestation would be necessary, It
cannot be gainsaid, that the said legislatively prescribed
essentials of a valid execution and attestation of a Will      C
under the Act are mandatory in nature, so much so, that
any failure or deficiency in adherence thereto would be
at the pain of invalidation of such document/instrument
of disposition of property. [Para 14-15] [414-F-H;415-A-       D
C]
       1.3 Section 68 of the 1872 Act, makes it
incumbent for a document required by law to be
attested, to have its execution proved by at least one
of the attesting witnesses, if alive, and is subject to the E
process of Court conducting the proceedings involved
and is capable of giving evidence. This rigour is,
however, eased in case of a document required to be
attested, but not a Will, if the same has been registered F
in accordance with the provisions of the Registration
Act, 1908 unless the execution of this document, by
the person said to have executed it, denies the same.
The relaxation extended by the proviso is of no avail
qua a Will. [Para 15.2] [415-G-H; 416-A]                    G

       1.4 Section 71 of the 1872 Act provides, that if the
attesting witness denies or does not recollect the
execution of the document, its execution may be proved
                                                               H
400        SUPREME COURT REPORTS                [2015) 6 S.C.R.


A     by other evidence. Section 71 has to be necessarily
      accorded a strict interpretation. The two contingencies
      permitting the play of this provision, namely, denial or
      failure to recollect the execution by the attesting witness
      produced, thus, a fortiori has to be extended a meaning
 B    to ensure that the limited liberty granted by Section 71
      does not in any manner efface or emasculate the
      essence and efficacy of Section 63 of the Act and Section
      68 of 1872 Act. The distinction between failure on the
      part of a attesting witness to prove the execution and
C     attestation of a Will and his or her denial of ttie said
      event or failure to recollect the same, has to be
      essentially maintained. Any unwarranted indulgence,
      permitting extra liberal flexibility to these two
      stipulations, would render the predication of Section 63
0
      of the Act and Section 68 of the 1872 Act, otiose. The
      propounder can be initiated to the benefit of Section 71
      of the 1872 Act, only if the attesting witness/witnesses,
      who is/are alive and is/are produced and in clear terms
E     either denies /deny the execution of the document or
      cannot recollect the said incident. Not only, this witness/
      witnesses has/have to be credible and impartial, the
      evidence adduced ought to demonstrate unhesitant
      denial of the execution of the document or authenticate
 F    real forgetfulness of such fact. If the testimony evinces
      a casual account of the execution and attestation of the
      document disregardful of truth, and thereby fails to prove
      these two essentials as per law, the propounder cannot
      be permitted to adduce other evidence under cover of
G     Section 71 of the 1872 Act. Such a sanction would not
      only be incompatible with the scheme of Section 63 of
      the Act read with Section 68 of the 1872 Act, but also
      would be extinctive of the paramountcy and
      sacrosanctity thereof, a consequence, not legislatively
H     intended. If the evidence of the witnesses produced by
  JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI                   401
        (DEAD) THROUGH HIS LRS. & ORS.

the propounder is inherently worthless and lacking in A
credibility, Section 71 of Act 1872 cannot be invoked to
bail him (propounder) out of the situation to facilitate a
roving pursuit. In absence of any touch of truthfulness
and genuineness in the overall approach, this provision,
which is not a substitute of Section 63 (c) and Section B
68 of the 1872 Act, cannot be invoked to supplement
such a failed speculative endeavour. Section 71 of the
1872 Act, even if assumed to be akin to a proviso to the
mandate contained in Section 63 of the Act and Section
68 of the 1872 Act, it has to be assuredly construed c
harmoniously therewith and not divorced therefrom with
a mutilative bearing. [Para 15.3, 45.1, 45.2] [416-C; 434-
G-H; 435-A-H; 436-A]

        2.1 The evidence of AW 1, as a whole is clearly         D
deficient vis-a-vis the requirements of Section 63 (c) of
the Act. He does not deny either the execution of the
Will or has not failed to recollect the said event. In clear
terms, this witness stated that though he had signed
the document, he was not sure, that he did so in the            E
presence of any other person attesting the same. He
could not also remember as to whether he was present
when the testator had signed the Will. He clarified in no
uncertain terms that his signatures on the Will before          F
the Sub Registrar, were only as an identifying witness.
His is thus, not a stance of either denial of the execution
of the Will or of failure to recollect such execution as
contemplated in Section 71 of the Act 1872. He even
endeavoured to represent that he had signed the                 G
certificate at the foot of the application for the Letter of
Administration not voluntarily but on being insisted upon
by the appellant. He was categorical in his testimony to
the effect that he had not signed the certificate
acknowledging the fact that he was an attesting witness.        H
402      SUPREME COURT REPORTS               [2015) 6 S.C.R.


A The evidence of AW 1, thus, does not inspire confidence
  to be acted upon in proof of the execution and attestation
  of the Will. [Para 27-28] [423-0-H; 424-A]

         2.2 AW 5, as his evidence would clearly
B demonstrate, also did neither falter nor, was equivocal
  so as to suggest that he failed to recollect the execution
  of the document. The conditions, precedent for
  application of Section 71 of the Act 1872, therefore, were
  also not available in the context of the evidence of AW
C 5. On a cumulative assessment of the evidence of AW 1
  and AW 5, it is held that Section 71 of the Act, is not
  invocable in the facts and circumstances of the case,
  so as to permit the propounder/appellant to resort to
  any other evidence to prove the execution and attestation
D of the Will involved as comprehended therein. [Para 29,
  29.1] [424-D-F]

         2.3 The testimony of AW 3 does not conform to
  the imperatives of the Section 63 (c) of the Act. His
E narration on affirmation at the trial, does not either by
  itself meet the essentialities of Section 63 (c) of the Act
  or can be construed to be a supplement of the evidence
  of AW 1 and AW 5, to furnish the proof of execution and
  attestation of the Will as enjoined by law. [Para 32] [427-
F B-C]

         2.4 The evidence of AW 1, AW 3 and AW 5, anlaysed
  collectively or in isolation, does not evince animo
  attestandi, an essential imperative of valid attestation
G of a Will. As Section 71 of the Act, 1872, by no means
  can be conceived of to be a diluent of the rigour of
  Section 63 of the Act, the testimony of these witnesses
  fall short of the probative content to construe the Will to
  be a validly executed and attested testamentary
H
 JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI             403
       (DEAD) THROUGH HIS LRS. & ORS.

Instrument as envisaged in law. The evidence of these A
witness, does not exhibit either denial of the execution
of the Will or their failure to recollect the said
phenomenon and thus, does not attract the applicability
of Section 71 of the Act 1872. [Para 33, 44] [427-C-E;
434-8-C]                                                 B·

       2.5 The materials on record, as a whole, also do
not present a backdrop, in which, in normal
circumstances, the testator would have preferred the
appellant to be the legatee of his property, as set out C
in the Will, by denying his wife, children and grand
children, who were alive and with whom he did share
a very warm, affectionate and cordial relationship. The
bequest is exfacie unnatural, unfair and improbable,
thus reflecting on the testator's cognizant, free, D
objective and discerning state of mind at the time of
the alleged dispensation. The susp1c1ous
circumstances attendant on the disposition, do
militatively impact upon the inalienable imperatives of
solemnity and authenticity of any bequest, to be E
effected by a testamentary instrument. The High Court
appreciated the law and the facts in the right
perspective and the impugned decision does not call
for any interference. [Para 46, 48] [436-C-E,G]
                                                         F
   Pentakota Satyanarayana and Ors. Vs. Pentakota
Seetharatnam and Ors. 2005 (3) Suppl. SCR 719: (2005)
8 sec 67 - distinguished.

    Bhaiya Guruji Dutt Singh Vs Gangotri Dutt Singh AIR G
1955 SC 346; H Venkatachala Iyengar Vs B N
Thimmajamma and Others AIR 1959 SC 443: 1959 Suppl.
SCR 426; Surendra Pal and Ors. Vs. Dr. (Mrs.)Saraswati
Arora and Anr. 1975 (1) SCR 687: (1974) 2 sec 600;
                                                         H
404        SUPREME COURT REPORTS             [2015) 6 S.C.R.


A Rabindra Nath Mukherjee vs. Panchannan Banerjee (Dead)
  1995) 4 SCC 459; Janki Narayan Bhoir Vs. Narayan
  Namdeo Kadam 2002 (5) Suppl. SCR 175: (2003) 2 SCC
  91 ;; M.B. Ramesh (D) by LRs. Vs. KM Veeraje Urs (D) by
  LRs and Ors. (2013) 7 SCC 490; Smt. Jaswant Kaur Vs
B Smt. Amrit Kaur and Ors. (1977) 1 SCR 925; Neki Ram
  and Ors. Vs. Ama Ram Godara and Ors. (2001) 9 SCC
  503; Janki Narayan Bhoir Vs. Narayan Namdeo Kadam
  2002 (5) Suppl. SCR 175: (2003) 2 SCC 91; Commission
  of Income Tax, Madras Vs. Ajax Products Limited AIR 1965
C SC 1358: 1965 SCR 700 - referred to.
                   Case Law Reference
  AIR 1955 SC 346         Referred to.           Para 11
  1959 Suppl. SCR 426     Referred to.           Para 11
D
  1975 (1) SCR 687        Referred to.           Para 11
  (1995) 4 sec 459        Referred to.           Para 11
  2002 (5) Suppl. SCR 175 Referred to.           Para 11
  2005 (3) Suppl. SCR 719 Referred to.           Para 11
E (2013) 7 sec 490        Referred to.           Para 11
  (1977) 1 SCR 925        Referred to.           Para 12
  (2001) 9 sec 503        Referred to.           Para 12
   2002 (5) Suppl. SCR 175 Referred to.          Para 12
 F 1965 SCR 700            Referred to.          Para 45
            CIVILAPPELLATE JURISDICTION: Civil Appeal No.
      4181-4182 of 2015.

G            From the Judgment and Order dated 02.07.2014 of
      the High Court of Delhi at New Delhi in FAO No. 279 of
      2007.

            Paras Kuhad, Nikhil Singhvi, Ms. Kartika Sharma,
      Abhishek Gupta for the Appellant.
H
  JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI 405
(DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.)

      Daljit Singh, Ashok Saini, Vandana Sehgal, Rohan         A
Thawani, Hardeep_ Singh Anand, Anand Daga, Mandeep
Singh Vinaik for the Respondents.
  -    The Judgment of the Court was delivered by
                                                               B
      AMITAVA ROY, J. Leave granted.

        1. The genesis of the lingering dissension in the
instant proceeding lies in the Will claimed by the appellant
herein to have been executed on 22-10-1973 by Nathu Singh
(since deceased), the predecessor in the interest of the       C
respondents, thereby bequeathing the property mentioned
therein to him (appellant). The judgment and order dated
15-05-2007 passed in PC No. 249/1980 (re-numbered as
PC No. 160/2006), by the District Judge, Tis Hazari Court,     D
Delhi, granting Letter of Administration to him, has been
reversed by the High Court of Delhi by its judgment and
order dated 02-07-2014 rendered in FAQ No. 279 of 2007
as assailed herein.

      2. We have heard Mr. Paras Kuhad, Sr. Advocate for       E
the appellant and Mr. Daljeet Singh, Senior Advocate for the
respondents.

       3. A brief outline of the pleaded facts would portray
the rival orientations. The appellant, to reiterate, filed an F
application under Section 276 of the Indian Succession Act
1925 (for short hereinafter referred to as the Act) with the
Will annexed, seeking grant of Letter of Administration. He
stated that the Will had been executed by Mr. Nathu Singh
on 22-10-1973, as the sole and absolute owner amongst G
others of Municipal House Tax No. 807 (Private No. A/152
to A/162/1) situated at Sukhdev Nagar, Katia Mubarakpur,
New Delhi, bequeathing the same to him. The appellant
stated that the testator nursed great love and affection for H
him for the services rendered by him and was not favourably
406       SUPREME COURT REPORTS                  [2015) 6 S.C.R.


A disposed towards his sons for their disagreeable conduct
  and activities. It was mentioned that the testator expired on
  02-08-1980 at Delhi whereafter, Shri Harswaroop Sharma,
  resident of 41, Subhash Market, Kotla Mubarkpur, informed
  him to receive the Will lying in his custody. It was, thereafter,
B according to the appellant that the application for Letter of
  Administration was filed. In the petition, he averred the names
  and particulars of the sons and daughters of the deceased
  testator and disclosed further that the subject matter of the
  Will was located in New Delhi. That the Will was executed
c and made in Delhi was also mentioned. The appellant did
  provide and sign a verification declaring the correctness of
  the statements made therein. Further another verification
  subscribed by Mr. G. C. Kumar, Advocate, Delhi in the
D capacity of an attesting witness to the Will, was also made.

         4. On the receipt of the notice of the proceedings
  registered on this petition, objections were filed by Mr.
  Jaswant Singh (since deceased) son of the testator and also
  by his other sons and daughters separately. For the sake of
E brevity the substance of the objections registered by the
  children of the testator would be synopsised.

          5. It was pleaded that the property said to have been
  bequeathed was ancestral joint Hindu family property and
F thus, the testator had no authority to execute the Will in favour
  of the appellant. While denying the claim that the appellant
  did enjoy the love and affection of the testator, it was asserted
  that he (appellant) in fact had been appointed by the testator
  as his rent collector on 11-05-1973 and was endowed with a
G registered power of attorney. The objectors averred that as
  the appellant failed to render his sincere services, the power
  of attorney was revoked. That the appellant did create
  tenancy in favour of his wife, Shrimati Santosh Kumar
  Sharma in respect of shop No. F-16 belonging to the testator
H without his knowledge for which he (testator) had instituted
  JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI 407
(DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.]

a suit against him (appellant) in the year 1975 for recovery A
of damages was also stated. The objectors did further refer
to several complaints made by the testator against the
appellant for his unsatisfactory services and misuse of power
including misappropriation of rents collected by him. They
also stated that the appellant had appeared as a witness in B
a criminal case against the deceased and was also placed
under suspension by his employer where he served as a
teacher.

        6. The respondents/objectors averred further that the       C
appellant was present at the time of execution of two other
Wills by the testator in favour of one Kisan Lal and Vimala
Devi and suggested that he (appellant) by playing fraud on
him (testator) might have got his Will signed, in the process
of getting the above two documents executed. In all, the            D
respondents/objectors assertively emphasized that the facts
and circumstances prevailing at the relevant point of time
did not at all warrant/justify execution of any Will by Mr. Nathu
Singh in favour of the appellant by depriving his children.
They, in categorical terms, denied the execution of the Will        E
and also the signatures and the thumb impressions of the
Mr. Nathu Singh thereon as claimed by the appellant. They
averred as well that the testator was conversant only with
Hindi language and that the contents of the Will in English         F
had never been read over or explained to him.

        7. In his rejoinder, the appellant refuted the
respondent's cavil based on jointness of the property. While
insisting that the property was the self acquired asset of the
deceased, the appellant stated that therefrom the testator, G
not only, had conveyed portions by way of sale, but also,
had gifted some to his children. He categorically denied the
allegation of his disagreeable activities and misuse of powers.
He instead, did impute fraudulent act of the resp·ondent, Mr. H
Jaswant Singh in getting his name mutated in the revenue
408         SUPREME COURT REPORTS                 [2015] 6 S.C.R.


A     records in place of Mr. Nathu Singh for which, a litigation
      between the two did ensue. He accused the said respondent
      for being responsible for institution of cases against him by
      Mr. Nathu Singh.

B            8. On these competing pleadings, the following issues
      were framed:

             1.     Whether Mr. Nathu Singh Saini, deceased ex
                    ecuted the Will dated 22-10-1973, validly while
c                   possessed of a sound disposing mind?

             2.     Relief.

          8.1 The parties thereafter adduced oral and
  documentary evidence. Whereas, the appellant examined
D six witnesses including himself, Mr. G. C. Kumar, Advocate
  (attesting witness). AW 3 Mr. A. K. Jain, Sub-Registrar, New
  Delhi and AW 5 Mr. Budh Ram (attesting witness), the
  respondents offered 8 witnesses in support of their case.
  Needless to say, the appellant proved amongst the others
E the Will, ExhibitA-1.

          9. The learned Trial Court, on its assessment of the
  evidence adduced, concluded that the appellant could prove
  that the Will dated 22-10-1973 ExhibitA-1 was executed by
F the testator in a sound disposing state of mind after fully
  understanding its contents and that it was duly registered.
  Having held so, it observed that the onus of proving that the
  document was not a genuine Will did shift to the respondents.
  On an analysis of the evidence offered by the respondents,
G the learned Trial Court was of the view that the same was
  inadequate to displace the validity of the Will. It thus returned
  a finding that the Will dated 22-10-1973 ExhibitA-1 had been
  validly executed by the testator with a sound disposing state
H of mind in presence of two attesting witnesses.
  Consequently, the Letter of Administration as prayed for, by
 JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI 409
(DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.]

the appellant vis-a-vis the said Will was granted.                  A
        10. Aggrieved, the respondents preferred appeal
being FAO 279/2007 in the High Court of Delhi. By the
impugned judgment and order, as adverted to herein above,
the verdict of the learned Trial Court has been reversed.           B
The High Court on a threadbare evaluation of the pleadings
and the evidence on record, on the touchstone of the relevant
provisions of the Act and the Indian Evidence Act, 1872 (for
short hereinafter referred to as Act 1872), determined that
the Will dated 22-10-1973 had not been proved as per law            C
and that no Probate or Letter of Administration could be
granted. Referring to the testimony of the attesting witnesses,
the High Court held that they could not prove the execution
of the Will as well as the attestation thereof within the
meaning of Section 63 (c) of the Act, a mandatory legal edict.      D
The High Court also dismissed the plea based on Section
71 of the Act, 1872 noting that the evidence of the attesting
witnesses produced by the appellant, did not only
demonstrate lack of intention to attest the Will, but also,
rendered the execution of the document and their signatures         E
thereon doubtful. The High Court noticed as well the
circumstances attendant on the bequest to render it doubtfuL
in view of the suspicious bearing thereof. It amongst others
noted therefore to arrive at this conclusion, that the deceased/    F
testator was versed only in Urdu and that the Will was drafted
in English, and that on the very same day he had executed
two other Wills involving different properties with the
possibility that the Will in question, was got signed, by
representing it to be a part of the other transactions. The         G
history of past litigation between the testator and the appellant
involving allegations of his unauthorized acts and misuse of
power also did weigh with the High Court to deduce that it
was unlikely that the testator would out of natural love and
affection bequeath his property er :my portion thereof to such      H
410         SUPREME COURT REPORTS                  [2015] 6 S.C.R.


A     a person, by depriving his own children. The decision of the
      Trial Court was thus interfered with.

              11. Mr. Kuhad has insistently argued that the
      impugned judgment and order suffers from apparent
B     misreading of pleadings and evidence on the record and is
      thus liable to be annulled. Relying in particular on the
      testimony of the witnesses AW 1 and AW 5, the learned
      senior counsel has urged that the execution and the
      attestation of the Will in question have been duly proved as
C     required under Section 63 of the Act. Drawing sustenance
      from Section 71 of Act 1872, the learned senior counsel has
      maintained that even assuming that the testimony of AW 1
      and AW 5 was deficient vis-a-vis the requirement of the
      Section 63 (c) of the Act, the appellant having examined
D     both the attesting witnesses, it was permissible for him to
      prove the execution and attestation of the Will by adducing
      other evidence. Mr. Ku had has thus argued that the evidence
      of AW 3, Sub-Registrar before whom, the Will had been
      registered on completion of all legal formalities, did as well
E     assuredly establish the execution and attestation of the Will
      as required by law and thus the High Court had erred in
      holding to the contrary. As the testimony of AW 3, the Sub-
      Registrar amply proved all the essentials of Section 63 (c)
F     of the Act, the learned Trial Court had validly granted the
      Letter of Administration, he maintained. Referring to the
      evidence of AW 1, Mr. G. C. Kumar, Advocate, Mr. Kuhad
      urged that the verification signed by him at the foot of the
      application for Letter of Administration did buttress, the
G     correctness of the contents thereof and, thus the stray
      deviations in his version at .the trial ought to have been
      discarded as inconsequential. In any case, the casualness
      of the testimony of the attesting witnesses does not adversely
      impact upon the validity of the Will, as such conduct could
H     have been the yield of an endeavour of the respondents to
  JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI 411
(DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.]

gain them over. While repudiating the conclusions of the           A
High Court inferring denial of execution by the attesting
witnesses and lack of animus on their part to attest the Will
as,well as the suspicious circumstances noticed by it, to be
perverse and opposed to the weight of the materials on
record, the learned senior counsel insisted that having regard     B
to the basic requisites of valid Will in law, namely, free and
sound disposing state of mind of the testator, understanding
of the implication of the bequest, admission of execution
thereof by him/her and due attestation thereof, the deductions
of the High Court contrary thereto are indefensible and are        C
thus liable to be negated. Apart from contending that the
respondents had failed to discha.rge their onus to prove their
objections in the face of the overwhelming evidence of
execution and attestation of the Will in law, the learned senior   D
counsel has urged that the High Court had fallen in error as
well in acting upon the additional evidence adduced before
it under Order 41 Rule 27 of the Civil Procedure Code (for
short hereinafter referred as Code), without offering an
opportunity to the appellant to counter such prayer. The           E
following decisions were relied upon to reinforce the above
contentions.

  AIR 1955 SC 346 Bhaiya Guruji Dutt Singh Vs Gangotri
Dutt Singh, AIR 1959 SC 443 H Venkatachala Iyengar Vs B F
N Thimmajamma and Others,(1974) 2 SCC 600 Kewal Pati
(Smt) Vs State of UP and Others, (1995) 4 SCC 459 Surendra
Pal and Ors. Vs. Dr. (Mrs.)Saraswati Arora and Anr.,(2003)
2 SCC 91 Janki Narayan Bhoir Vs. Narayan Namdeo Kadam,
(2005) 8 SCC 67 Pentakota Satyanarayana and Ors. Vs. G
Pentakota Seetharatnam and Ors., (2013) 7 SCC 490 M.B.
Ramesh (D) by LRs. Vs. KM Veeraje Urs (D) by LRs and
Ors.

      12. Per contra, Mr. Singh has argued that it being H
apparent on the face of the records that neither the execution
412       SUPREME COURT REPORTS                   [2015) 6 S.C.R.


A nor the attestation of the Will involved had been proved by
  any of the witnesses, the impugned judgment is unassailable
  and thus the instant petition is liable to be dismissed in limine.
  The findings recorded by the High Court being founded on
  an indepth scrutiny of the materials on record, are
B unmistakably conclusive and thus this Court would not
  embark upon a fresh appraisal thereof, he maintained. The
  learned senior counsel by referring to the evidence of the
  witnesses AW 1, AW 5 in particular has emphatically pleaded
  that as the appellant had failed to prove either the execution
C or the attestation of the Will, Section 71 of the Act of 1872 is
  inapplicable to the facts of the present case, and thus the
  testimony of AW 3 is wholly irrelevant. Without prejudice to
  this, the learned senior counsel has urged that the evidence
  of AW 3 as well falls short of the requirements of Section 63
0
  (c) of the Act and thus, cannot be invoked to the advantage
  of the appellant. As the evidence of AW 1 and AW 5 does
  not attract the contingencies enumerated in Section 71 of
  Act 1872, the version of AW 3, in any view of the matter, is
E of no avail to the appellant, he asserted. The learned senior
  counsel maintained that even de hors the additional evidence
  laid before the High Court under Order 41 Rule 27 of the
  Code, the findings recorded in the impugned judgment and
  order are sustainable in law and on facts and thus no
F interference therewith is called for. Mr. Singh relied on the
  decisions hereunder to endorse his arguments.

  (1977) 1 SCR 925 Smt. Jaswant Kaur Vs Smt. Amrit Kaur
  and Ors., (2001) 9 SCC 503 Neki Ram and Ors. Vs. Arna
G Ram Godara and Ors., (2003) 2 SCC 91 Janki Narayan Bhoir
  Vs. Narayan Namdeo Kadam.

  13. The contentious pleadings and the assertions based
  thereon in the backdrop of the evidence as a whole have
H been duly analysed by us. The competing perspectives
  notwithstanding, the purport and play of Section 63 of the
  JAGDISH CHANDSHARMAv. NARAIN SINGH SAINI 413
(DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.]

Act read with Sections 68 and 71 of Act 1872 as deciphered A
by various judicial enunciations would have a decisive
bearing on the process of resolution of the irreconcilable
issues that demand to be addressed. It would thus be apt,
nay, imperative to refer to these legal provisions before
embarking on the appreciation of the evidence to the extent B
indispensible. Section 63 of the Act and Sections 68 and 71
of the Act 1872, are thus extracted hereunder for ready
reference.

   Indian Succession Act. 1922                                  c
        "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              D
  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.                            E
       (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 Wil~
                                                                F
         (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    G
  acknowledgement 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
                                                                H
  one witness by present at the same time, and no
414       SUPREME COURT REPORTS                   [2015] 6 S.C.R.


A      particular form of attestation shall be necessarv.

           Indian Evidence Act 1872

           68. Proof of execution of document required by
       law to be attested- If a document is required by law to
 B
       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
c      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 Viii:!, whir.h h~~ been registered
       in accordance with the provisions of the Indian
D
       Registration Act, 1908 (16of1908), unless its execution
       by the person by whom it purports to have been
       executed is specifically denied.

           71. Proof when attesting witness denies the
E      execution.-lf the attesting witness denies or does not
       recollect the execution of the document, its execution
       may be proved by other evidence.

           14. As would be evident from the contents of Section
F 63 of the Act thatto execute the Will as contemplated therein,
  the testator would have to sign or affix his mark to it or the
  same has to be signed by some other person in his presence
  and on his direction. Further the signature or mark of the
  testator or the signature of the person signing for him has to
G be so placed that it would appear that it was intended thereby
  to give effect to the writing as Will. The Section further
  mandates that the Will shall have to be attested by two or
  more witnesses each of whom has seen the testator   '    sign or
H affix his mark to it or t";.;s seen some other persons sign !t. in
  the presence and on the ~irection of the testator, or has
  JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI 415
(DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.]

received from the testator, personal acknowledgement of a A
signature or mark, or the signature of such other persons
and that each of the witnesses has signed the Will in the
presence of the testator. It is, however, clarified that it would
not be necessary that more than one witness be present at
the same time and that no particular form of attestation would B
be necessary.

       15. It cannot be gainsaid that the above legislatively
prescribed essentials of a valid execution and attestation of
a Will under the Act are mandatory in nature, so much so, C
that any failure or deficiency in adherence thereto would be
at the pain of invalidation of such document/instrument of
disposition of property.

        15.1. In the evidentiary context Section 68 of the Act o
1872 enjoins that if a document is required by law to be
attested, it would not be used as evidence unless one
attesting witness, at least, if alive, and is subject to the
process of Court and capable of giving evidence proves its
execution. The proviso attached to this Section relaxes this E
requirement in case of a document, not being a Will, but 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.                                           F

        15.2. These statutory provisions, thus, make it
incumbent for a document required by law to be attested to
have its execution proved by at least one of the attesting
witnesses, if alive, and is subject to the process of Court G
conducting the proceedings involved and is capable of giving
evidence. This rigour is, however, eased in case of a
document also required to be attested but not a Will, if the
same has been registered in accordance with the provisions
of the Indian Registration Act, 1908 unless the execution of H
416       SUPREME COURT REPORTS                  (2015] 6 S.C.R.


A  this document by the person said to have executed it denies
   the same. In any view of the matter, however, the relaxation
   extended by the proviso is of no avail qua a Will. The proof
   of a Will to be admissible in evidence with probative potential,
   being a document required by law to be attested by two
 B witnesses, would necessarily need proof of its execution
   through at least one of the attesting witnesses, if alive, and
   subject to the process of the Court concerned and is capable
   of giving evidence.

C         15.3 Section 71 provides, however, that ifthe attesting
  witness denies or does not recollect the execution of the
  document, its execution may be proved by other evidence.
  The interplay of the above statutory provisions and the
  underlying legislative objective would be of formidable
D relevance in evaluating the materials on record and recording
  the penultimate conclusions. With this backdrop, expedient
  it would be, to scrutinize the evidence adduced by the parties.

         15.4 As hereinbefore mentioned, the appellant has
E endeavoured to prove the execution and attestation of the
  Will, Ex. A-1 through AW 1 Mr. G. C. Kumar and AW 5 Mr.
  Budh Ram. He has examined as well AW 3 Mr. A. K. Jain,
  Sub Registrar, New Delhi before whom the Will was
  registered on the very same day of its execution i.e., 22-1 O-
F 1973.

          15.5. Be that as it may, AW 1 Mr. Kumar deposed on
  oath that he was enrolled as a lawyer in or about 1971 and
  used to assist his father who was a deed writer in Urdu
G language. The witness stated that he used to come to Tis
  Hazari Court for attending his cases. He testified to have
  seen the Will Ex. A-1 which he claimed had been drafted by
  him. He failed to remember as to whether the testator, Mr.
  Nathu Ram Singh ti"d come to his father in his pres'3nce or
H that his father had Gi'Jen him instructions to write the Will.
   JAGDISH CHAND SHARMAv. NARAIN SINGH SAINI 417
 (DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.]

The witness even failed to remember whether the Will had            A
been given to him by his father or to the testator. He also
could not recall as to whether he was present when the
testator had signed the Will. The witness, however, admitted
that Ex. A-1 did bear his signatures as an attesting witness
but deposed that due to lapse of time, he did not remember          B
whether any other person was also present and had attested
the document when he had signed it. He, however, stated
to have been present in the office of the Sub Registrar when
the Will, Ex. A-1 was presented for registration. He also
admitted to have signed the document on the backside                C
thereof in the presence of the clerk of the office. The witness
stated that he had also identified the testator before the Sub
Registrar but clarified that it was as per the prevalent practice
for an identifying witness to do so. He added by stating that       D
he had signed the document only in that capacity. The
witness deposed further, that he could not say whether the
thumb impression and the signatures of the testator at the
time of the registration and appearing on the back of page
one of the Will had been obtained in his presence or not.           E
He even failed to recall as to whether the contents of the
Will had been read over and explained to the testator by
him or by his father.

        15.6 This witness was declared hostile and was cross- F
examined on behalf of the appellant in course whereof he
deposed ttiat he could not say whether he had signed the
Will in presence of the testator. When confronted, he
admitted to have !:igned the certificate at the focit of the
application in Section 276 of the Act praying for grant of G
Letter of Administration but denied to have done so as an
attesting witness of the Will. He stated instead that he had
put his signatures as the appellant wanted him to do so. He
even denied to have read the contents of the certificate. He
refuted the suggestion that he had mad~ a false statement H
418        SUPREME COURT REPORTS               (2015] 6 S.C.R.


A     in Court being won over by the respondents.

         16. AW 2 Shri. Harswaroop has stated on oath that
  in November, 1973, the testator had handed over to him
  one Will with a direction to deliver it to the appellant upon
B his death. According to this witness, he did so after the
  demise of Mr. Nathu Singh and handed over the Will to the
  appellant. The witness stated to have seen tr.e Will Ex. A-1,
  bearing the signature of Mr. Nathu Singh at several places.
  He claimed of being conversant with the handwriting and
C signature of the Mr. Nathu Singh. Admittedly, however, this
  witness is neither one to the execution of the Will, nor the
  attestation thereof as obligated by law.

          17. Before reverting to AW 3 in the ordinary sequence,
o the testimony of AW 5 figuring in the chain of attestation as
  presented by the appellant would be referred to. This witness,
  Mr. Budh Ram claimed to have known the deceased/testator.
  He stated on oath that he had seen the document Ex. A-1
  and identified his signatures thereon. He deposed to have
E signed the document in presence of the testator. He,
  however, hastened to add that he had not seen the testator
  signing the Will. He denied to have appeared before the
  Sub Registrar or to have identified the testator before the
  said authority. He stated that he had signed the document
F outside the office. Though, he asserted that testator was
  mentally alert on the date on which he (witness) had signed
  the Will, he clarified that he did not do so on the asking of
  the testator. The witness, however, admitted the presence
  of the testator at that time.
G
          17 .1 In cross-examination, the witness disclosed that
  the appellant was also present on the date on which he had
  signed the document and that he did not know the contents
  of the said document. He stated further that he had not been
H told that any Will was executed by Mr. Nathu Singh and that
  JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI 419
(DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.)

he was to attest it. Noticeably, this witness. had not been     A
declared to be hostile.

        18. AW 3 Mr. A. K. Jain who at the relevant time was
the Sub Registrar, New Delhi, on oath, stated that the Will
Ex. A-1 had been presented before him for registration on B
22-10-1973. According to this witness, the testator was
identified before him by one Mr. Budh Ram and Mr. G. C.
Kumar, Advocate. The witness stated that these persons
did sign the document in his presence as identifying
witnesses on the back of page No. 1 of Ex. A-1. He deposed C
as well that the testator was read out the contents of the
document and was asked as to whether he was executing
the Will himself and that on his acknowledgement in the
affirmative, he (witness) made his endorsement on the
document in his own hand. While proving his endorsement, D
the witness iterated that the testator had admitted the
execution of the Will and also proved his (testator) signatures
and thumb impressions thereon.

        18.1 In his cross-examination, the witness stated       E
that he did not know the testator personally and that he had
made his endorsements on the Will in the capacity of a
registering authority only. He admitted that on the very same
date, another document purporting to be a Will executed by
Mr. Nathu Singh was also presented for registration for which   F
the identifying witnesses had been the same.

        19. The testimony of AW 4 Mr. Ramchander Sharma
is to the effect that the appellant had borne the expenses for
the firewood of the funeral pyre of the deceased Nathu Singh. G
The testimony of AW 7 Mr. M. S. Santosh Goel and AW 8
Mr. Satish Kumar being insignificant vis-a-vis issues involved
is not necessary to be dilated upon.

      20. AW 6 Mr. Jagdish Chander Sharma, appellant H
420         SUPREME COURT REPORTS                    [2015] 6 S.C.R.


A     deposed that he had joined the deceased Mr. Nathu Singh,
      in the year 1952 on the recommendation of his brother-in-
      law. He stated that the deceased entrusted him the duty to
      realise rent of his property and also to look after the matters
      pertaining to litigation in connection therewith. The witness
 B    stated that in the process, he was also made the attorney of
      the deceased and while realising rent used to accompany
      Mr. Jaswant Singh, his (Nathu Singh) son. He referred to
      some differences between the father and the son with regard
      to alleged wrong doings of the latter qua immovable
C     properties resulting in institution of a suit by Mr. Nathu Singh
      against Mr. Jaswant Singh. According to this witness, Mr.
      Jaswant Singh was inimically disposed towards him for which
      he made a complaint against him in his department for which
      he was placed under suspension. He stated that Mr. Nathu
0
      Singh thereafter, in the interest of his job, cancelled his power
      of attorney but asked him to look after the property and to
      realise the rents. According to the witness, Mr. Jaswant Singh
      out of his persisting animosity caused a raid to be conducted
E     in his house, and after the demise of Mr. Nathu Singh did
      openly intimidate him of dire consequences. He denied to
      have visited the office of the Sub Registrar on 22-10-1973
      and insisted that AW 1 Mr. G. C. Kumar, Advocate had signed
      the certificate of the petition under Section 276 of the Act.
F     He also asserted that AW 1 had attested the Will after seeing
      the sam~. According to this witness, the relationship of Mr.
      Nathu Singh with his sons was strained as they had been
      endeavouring to take over the possession of his properties.
      The witness identified the signature of the testator on the
G     Will Ex. A-1.

          21. In his detailed cross-examination, the witnesses
  referred to several legal proceedings, civil and criminal
  instituted by the testator which according to him, however,
H did fizzle out with time without yielding any adverse verdict
   JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI 421
 (DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.)

against him. While mentioning that Mr. Nathu Singh used to A
dispose of his properties by executing Wills, the witness also
mentioned about litigations between him and his son Mr.
Jaswant Singh. He admitted that at the time of death of the
testator, his wife, sons, daughters and several grand children
were alive. In categorical terms, he stated that the testator B
had no quarrel with his wife and daughters. He also
mentioned about gift of properties by Mr. Nathu Singh to his
sons.

        22. The testimony of RW 1 Mr. Ramesh Kumar, RW              C
 2 Mr. M. S. Rao and RW 4 Mr. Ramesh Chander Sharma
 being not of any determinative significance is not being
 referred to. RW 3 Mr. Narayan Singh Saini, son of the testator
 deposed that his( testator) family comprised of his wife, Smt.
 Chanderwati, three sons and three daughters. He stated             D
 that during the life time of the testator, he had executed three
 separate gift deeds conveying property to each of his sons.
 That Mr. Nathu Singh had a host of grand children was also
 stated by this witness. He mentioned in particular that the
testator had a very cordial relationship with the children till     E
 he died so much so that they along with the grand children
 used to congregate on all family functions. He averred that
the testator had appointed the appellant as his attorney for
collecting rent from his tenants. Thereby, the testator had         F
also authorized the appellant to prepare documents with
 regard to the properties which he intended to sell from time
to time. The witness deposed that the testator eventually
had to cancel the power of attorney as the appellant was
found indulging in interpolation of tenancies without his           G
consent and with malafide intention misappropriated his
properties. He stated further that at the time of his death,
the testator was aged ninety years. He reiterated that the
Will in question was deceitfully inserted amongst other
documents to procure the signature of the testator.                 H
422      SUPREME COURT REPORTS                  [2015] 6 S.C.R.


A        23. The version of RW 5 Mr. Guiab Chand and RW 6
  Mr. Bhupesh Gupta is also of not any consequence vis-a-vis
  the issues involved. RW 7 Mr. Ram Chander Saini deposed
  on oath that he used to represent Mr. Nathu Singh in various
  legal proceedings including one instituted against the
B appellant. He denied the suggestion that Mr. Nathu Singh
  had a very cordial relationship with the ·appellant.

         24. RW 8 Mr. Rajinder Sirigh, grandson of Mr. Nathu
  Singh, in his statement on oath expressed his ignorance
C about any litigation between his grandfather and his father
  Mr. Jaswant Singh.

         25. The fascicule of the evidence viewed as
  hereinaboye qua the execution and the attestation of the
D Will thus can be compartmentalised into two slots. The first
  comprising of the testimony of AW 1 Mr. G. C. Kumar and
  Mr. Budh Ram and the other of AW 3 Mr. A. K. Jain, Sub
  Registrar, New Delhi.

 E.      26. Evident it would be from the deposition of AW 1
  that though he owned to be the author of the document,
  having drafted it, he could not recall whether he did so on
  the instruction of the testator. He did not remember as well
  as to whether the Will had been handed over by him to his
F father or the testator. He failed to recollect also whether he
  was present when the testator had signed the Will, Ex. A-1.
  Though, he admitted that the document did bear his
  signatures as an attesting witness at two places bein'.;1 roint
  "A" and "B", he could not recall whether there was any other
G person also present and had similarly attested the document
  when he had signed at point "A''. He was categorical in
  stating that he was present in the office of the Sub Registrar
  when the Will was presented for registration and had signed
  on the back page thereof but clarified that he did so only as
H an identifying witness. He could not say as to whether the
   JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI 423
 (DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.)

 signatures and thumb impressions of the testator at point A
 "Y" and "Y-1" on the back page of the Wil) had been obtained
 in his presence or not. He also could not state whether the
 contents of the Will w.ere read over and explained to the
 testator by him or his father. He was candid to assert that
 he was not sure as to whether he had signed the Will in B
 presence of the testator or not or whether the testator had
 signed the document in his presence. He was unequivocal
 in stating that he had signed the certificate at the foot of the
 petition for grant of Letter of Administration as he was asked
 to do so by the appellant and he did not do so in the capacity C
 of an attesting witness to the Will. He even denied to have
 gone through the contents of the certificate before
·subscribing thereto.

        27. The evidence of AW 1, as a whole is, therefore D
clearly deficient vis-a-vis with the requirements of Section
 63 (c) of the Act. Noticeably, he does not deny either the
execution of the Will or has not failed to recollect the said
 event. In clear terms, this witness stated that though he had
signed the document, he was not sure that he did so in the E
presence of any other person attesting the same. He could
not also remember as to whether he was present when the
testator had signed the Will. He clarified in no uncertain
terms that his signatures on the Will before the Sub Registrar F
were only as an identifying witness. His is thus not a stance
of either denial of the execution of the Will or of failure to
recollect such execution as contemplated in Section 71 of
the Act 1872.

       28. To cap it all, he even endeavoured to represent G
that he had signed the C:ertificate at the foot of the application
for the Letter of Administration not voluntarily but on being
insisted upon by the appellant. He was categorical in his
testimony to the effect that he had not signed the certificate H
acknowledging the fact that he was an attesting witness.
424        SUPREME COURT REPORTS                 (2015] 6 S.C.R.


A     The evidence of AW 1 Mr. G. C. Kumar, Advocate thus does
      not inspire confidence to be acted upon in proof of the
      execution and attestation of the Will, EX. A-1.

           29. AW 5 Mr. Budh Ram was categorical in owning
B his signatures on the Will at points "C" AND "Y-2" and claimed
  to have to put the same in the presence of the testator. He,
  however, was unhesitant in testifying that he had not seen
  the testator signing the document at the points "B", "Y-1". He
  denied to have appeared before the Sub Registrar or to have
C identified the testator before the said authority. His
  unambiguous statement on oath is that he had signed the
  document outside the office of the Sub Registrar. His
  evidence as well cannot be construed to be one of denial of
  execution of the Will. This witness, as his evidence would
D clearly demonstrate, also did neither falter nor, was equivocal
  so as to suggest that he failed to recollect the execution of
  the document. The conditions, precedent for application of
  Section 71 of the Act 1872, therefore, are also not available
  in the context of the evidence of this witness.
E
           29.1 On a cumul~tive assessment of the evidence of
  AW 1 and AW 5, we are of the unhesitant opinion that Section
  71 of the Act, is not invocable in the facts and circumstances
  of the case so as to permit the propounder/appellant to resort
F to any other evidence to prove the execution and attestation
  of the Will involved as comprehended therein. The account
  of the relevant facts bearing on the execution and attestation
  of the Will as provided by these witnesses tioougn is
  thoroughly inadequate qua the prescriptions of Section 63
G (c) of the Act does not amount to denial of execution or failure
  to recollect the said event as contemplated in this provision.

          30. The above notwithstanding, expedient it would
  be, in the face of the protracted controversy, to examine as
H well the evidence of AW 3, Mr. A. K. Jain Sub Registrar, New
   JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI 425
 (DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.]

 Delhi, refuge whereof has been sought for by the appellant A
 under Section 71 of the Act, in the alternative.

        30.1 This witness, to reiterate, was the Sub Registrar
atAsaf Ali road, New Delhi on the date on which, as he had
testified, the Will was laid before him for registration.        B
Incidentally, it was on the very same date of its execution
i.e. 22-10-1973. He deposed that the testator Mr. Nathu Singh
was identified before him by AW 1 Mr. G C. Kumar, Advocate,
AW 1 and Mr. Budh Ram AW 5. According to this witness,
these two persons did sign the document in his presence as       C
identifying witnesses on the back of page No. 1 thereof. He
stated further that the contents of the Will were read out to
the testator and he was asked as to whether he did execute
the same himself. The witness deposed that to this, the
testator acknowledged in the affirmative whereupon he            D
(witness) endorsed the same. The witness proved his
endorsements at the portions encircled "S" and "S-1". He
also stated that the testator had signed and put his thumb
marks as "Y" and "Y-1" in his presence in acknowledgement
of the execution of the Will by him.                             E

          30.2 In cross-examination, the witness admitted that
. he had made his endorsements in the capacity of a
  registering authority only. While admitting that on the very
  same date another document, purporting to be a Will            F
  executed by the same testator had also been presented
  before him for registration, he admitted that both the
  identifying witnesses of the Will involved were also the
  identifying witnesses of the other Will.
                                                                 G
       31. A plain perusal of the Will presented in course of
the arguments would reveal that the space therein meant to
mention the age and the date of execution thereof had
remained vacant till it was produced for registration. This
was though as claimed by the appellant, the document had H
426         SUPREME COURT REPORTS                  [2015] 6 S.C.R.


A  already been executed by the testator by putting his signature
   at points "B" on both the pages along with the signatures of
   the attesting witnesses AW 1 and AW 5 as well. On the back
   of page No. 1 of the Will, there are two signatures and thumb
   impressions "Y" and "Y-1" said to be of the testator beneath
 B the stamped endorsements in the official proforma signed
   by AW 3. On the same page, the signature of AW 1 Mr. G.
   C. Kumar, Advocate, and thumb impression of AW 5 Budh
   Ram are also available at points "X" and "Y-2" respectively.

C             31.1 Noticeably, though the official endorsements, as
      above seem to suggest that those signified admission of
      execution of the document by the testator before AW 3, the
      evidence of this witness on oath, does neither prove nor
      demonstrate in unmistakable terms that both the identifying
D     witnesses had seen the testator put his signatures and thumb
      impressions for the execution of the Will. His testimony also
      does not establish that the witnesses AW 1 and AW 5 had
      put their signature/thumb impression before the Sub
      Registrar in presence of the testator. This assumes
 E    significance not only as per the non-relaxable mandate of
      Section 63 (c) of the Act but also for the version of AW 1 that
      he had signed the document at the time of registration only
      as an identifying witness and that he did not remember as to
 F    whether the thumb impressions and the signatures of the
      testator at "Y" and "Y-1" were obtained in his presence or
      not. The testimony of AW 5 to the effect that his signature
      as well as thumb impression at "Y-2" though made in
      presence of the testator was taken outside the Sub
G     Registrar's office is significant as the same, if accepted,
      would mean that he had not seen the testator signing the
      Will either at point "B" or putting his signature and thumb
      impression at "Y" and "Y-1" on the backside of page No. 1 of
      the Will. To reiterate, he stated on oath that he had not
 H    identified the testator before the Sub Registrar. Evidently,
   JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI 427
 (DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.]

AW 3 was not present at the time of initial execution of the      A
Will and thus could not have witnessed the said event.
        32. In the overall perspective thus, the testimony of
AW 3, in our estimate, does not conform to the imperatives
of the Section 63 (c) of the Act. His narration on affirmation 8
at the trial, does not either by itself meet the essentialities of
Section 63 (c) of the Act or can be construed to be a
supplemE;mt of the evidence of AW 1 and AW 5 to furnish the
proof of execution and attestation of the Will as enjoined by
~                                                                 c
        33. The evidence of AW 1, AW 3 and AW 5, anlaysed
collectively or in isolation, does not evince animo attestandi,
an essential imperative of valid attestation of a Will. As
Section 71 of the Act, 1872 by no means can be conceived          D
of to be a diluent of the rigour of Section 63 of the Act, the
testimony of these witnesses fall short of the probative
content to construe Ex. A-1 to be a validly executed and
attested Will as envisaged in law.
        34. In Bhaiya Guruji Dutt Singh (supra), the testimony E
of the two attesting witnesses was found wanting in credibility
for which the propounder did fall back on the admission of
the testator about the execution of the Will involved at the
time of registration in presence of two persons Mr. Mahadeo F
Prasad and Mr. Nageshur, who also had appended their
signatures at the foot of the endorsement of the Sub
Registrar. These signatures were contended to be enough
to prove due attestation of the Will. It was held that mere
signatures of these two persons appearing at the foot of the G
endorsement of registration could not be presumed to have
been made as attesting witnesses or in the capacity of
attesting witnesses and absence of animo attestandi was
underlined.

       35. This Court in H. Venkatachala Iyengar (supra)          H
428       SUPREME COURT REPORTS                  (2015] 6 S.C.R.


A while dilating on the statutory requisites of valid execution of
  a Will, observed that unlike other documents this
  testamentary instrument speaks from the death of the testator
  and by the time when it is produced before a Court, the
  testator had departed from his temporal state and is not
B available to own or disown the same. It was thus emphasised
  that this does introduce an element of solemnity in the
  decision on the question as to whether the document
  propounded is proved to be the last Will and testament of
  the departed testator. In this context, it was emphasised
C that the propounder would be required to prove by
  satisfactory evidence that (i) the Will was signed by the
  testator, (ii) he at the relevant time was in a sound and
  disposing state of mind, (iii) he understood the nature and
  effect of the dispositions, and that (iv) he put his signature to
0
  the document of his own free will. It was observed that
  ordinarily when the evidence adduced in support of the Will
  is disinterested, satisfactory and sufficient to prove the sound
  and disposing state of the testator's mind and his signature
E as required by law, the court would be justified in making a
  finding in favour of the propounder signifying that he/she
  had been able to discharge his/her onus to prove the
  essential facts. The necessity of removal of the suspicious
  circumstances attendant on the execution of the Will,
F however, was underlined as well. That no hard and fast or
  inflexible rule can be laid down for the appreciation of the
  evidence to this effect was acknowledged.

         36. That a propounder has to demonstrate that the
G Will was signed by the testator and that he was at the relevant
  time in a sound disposing state of mind and that he
  understood the nature and effect of the disposition and further
  that he had put his signature to the testament on his own
  free will and that he had signed it in presence of two
H witnesses who had attested it in presence and in the
   JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI 429
 (DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.]

presence of each other, in order to discharge his onus to         A
prove due execution of the said document was reiterated by
this Court amongst others in Surendra Pal and Ors. (supra)
It was held as well that though on the proof of the above
facts, the onus of the propounder gets discharged, there
could be situations where the execution of a Will may be          B
shrouded by suspicious circumstances such as doubtful
signature, feeble mind of the testator, overawed state induced
by powerful and interested quarters, prominent role of the
propounder, unnatural, improbable and unfair bequests
indicative of lack of testator's free will and mind etc. In all   C
such eventualities, the conscience of the Court has to be
satisfied and thus the nature and quality of proof must be
commensurate to such essentiality so much so to remove
any suspicion which may be entertained by any reasonable          D
and prudent man in the prevailing circumstances. It was
propounded further that where the caveator alleges undue
influence, fraud and coercion, the onus, however, would be
on him to prove the same, and on his failure, probate of the
Will must necessarily be granted if it is established that the    E
testator had full testamentary capacity and had in fact
executed it validly with a free will and mind.

        37. In Jaswant Kumar (supra) this Court held that
 suspicion generated by the distrustful circumstances cannot F
 be removed by the mere assertion of the propounder that
 the Will bears the signature of the testator or that the testator
was in a sound and disposing state of mind and memory
when the Will was made or that those like the wife .and
children of the testator, who would normally receive their G
due share in the estate, were disinherited because the
testator might have had seen reasons for excluding them. It
was underscored that it was obligatory for the propounder
to remove all legitimate suspicions before the document
could be accepted as the last Will of the testator.                H
430         SUPREME COURT REPORTS                    (2015] 6 S.C.R.


A          38. In Ravindra Nath Mukharji and Another (supra)
   this Court ·entertained the view that the, witnesses to the
   Will, if interested for the propounder is perceived to be a
   suspicious circumstance, the same would lose significance
   if the document is registered and the Sub Registrar does
 B certify that the same had been read over to the executor
   who on doing so admits the contents.

               39. In Pentakota Satyanarayan and Others (supra)
      the testator P. Mr. Ram Murthi had admitted the execution of
C     the Will involved. He, however, expired while the suit was
      pending. The Will was registered and the signature of the
      testator was identified by two witnesses whereupon the Sub
      Registrar had signed the document. In this textual premise,
      it was held that the signatures of the registering officer and
D     of the identifying witnesses affixed to the registration
      endorsement did amount to sufficient attestation within the
      meaning of the Act. It was held as well that the endorsement
      of the Sub Registrar that the executant had acknowledged
      before him the execution, did also amount to attestation.
 E    The facts revealed that the Will was executed before the
      Sub Registrar on which the signature of the testator as well
      as signature and the thumb impression of the identifying
      witnesses were taken by the said authority, whereafter the
 F    latter signed the deed. In general terms, it was observed
      that registration of the Will per se did not dispense with the
      need of proving its execution and the attestatior:i in the
      manner as provided in Section 68 of the 1872 Acf. It was
      enunciated as well that execution consisted of signing a
G     document, reading it over and understanding and completion
      of all formalities necessary for the validity of the act involved.

         39.1 The facts as obtained in this decision are
  distinguishable from those in hand and are incomparable
H on many counts. No analogy can be drawn from this case
  to conclude that the testimony of AW 3 even if read with that
   JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI 431
 (DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.]

of AW 1 and AW 5 can sum up to prove valid execution and          A
attestation of the Will as stipulated by Section 63 (c) of the
Act.

         40. Janki Narayan Bhoir (supra) witnessed a fact
 situation where one of the attesting witnesses of the Will,      s
 though both were alive at the relevant time, was produced
to prove the execution thereof. The scribe of the document
 was also examined. The attesting witness deposed that he
 had not seen the other witness present at the time of
 execution of the Will and further he did not remember as to      C
whether he along with the latter were present either when
 the testator had put his signature on the Will or that he had
 identified the person who had put the thumb impression on
 the document. The issue raised before this Court was that
the evidence of the said attesting witness had failed to          D
establish the attestation of the Will by the other attesting
witness who though available had not been examined and
 thus the Will was not proved. The contrary plea was that
 though section 63 of the Act required attestation of a Will by
 at least two witnesses, it could be proved by examining one      E
 attesting witness as per Section 68 of the 1872 Act and by
 furnishing other evidence as per the Section .71 thereof.
 While dwelling on the respective prescripts of Section 63 of
 the Act and Sections 68 and 71 of Act 1872 vis-a-vis a           F
document required by law to be compulsorily attested, it was
 held that if an attesting witness is alive and is capable of
giving evidence and is subject to the process of the Court,
 he/she has to be necessarily examined before such
document can be used in evidence. It was expounded that           G
on a combined reading of Section 63 of the Act and Section
68 of the 1872 Act, it was apparent that mere proof of
signature of the testator on the Will was not sufficient and
that attestation thereof was also to be proved as required by
Section 63 (c) of the Act. It was, however, emphasised that       H
432        SUPREME COURT REPORTS                  [2015] 6 S.C.R.


A though Section 68 of the 1872 Act permits proof of a
  document compulsorily required to be attested by one
  attesting witness, he/she should be in a position to prove
  the execution thereof and if it is a Will, in terms of Section
  63 (c) of the Act, viz, attestation by two attesting witnesses
B in the manner as contemplated therein. It was exposited
  that ifthe attesting witness examined besides his attestation
  does not prove the requirement of the attestation of the Will
  by the other witness, his testimony would fall short of
  attestation of the Will by at least two witnesses for the simple
C reason that the execution of the Will does not merely mean
  signing of it by the testator but connotes fulfilling the proof of
  all formalities required under Section 63 of the Act. It was
  held that where the attesting witness examined to prove the
  Will under Section 68 of 1872 Act fails to prove the due
0
  execution of the Will, then the other available attesting
  witness has to be called to supplement his evidence to make
  it complete in all respects.

            41. Qua Section 71 of 1872 Act, it was held to be in
E the form of a safeguard to the mandatory provision of Section
  68 to cater to a situation where it is not possible to prove the
  execution of the Will by calling the attesting witnesses though
  alive i.e. if the witnesses either deny or do not recollect the
F execution of the Will. Only in these contingencies by the aid
  of Section 71, other evidence can be furnished. It was further
  clarified that Section 71 of Act 1872 would have no application
  to a case where one attesting witness who alone had been
  summoned fails to prove the execution of the Will and the
G other attesting witness though available to prove the
  execution of the same, for reasons best known, is not
  summoned before the Court.

            42. This Court underlined that Section 71 of the Act
      1872 was meant to lend assistance and come to the rescue
H of a party who had ::lone his best, but ·driven to a state of
  JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI 433
(DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.]

helplessness and impossibility and cannot be let down A
without any other opportunity of proving the due execution
of the document by other evidence. That, however, Section
71 cannot be invoked so as to absolve the party of his
obligation under Section 68 read with Section 63 of the Act
and to liberally allow him, at his will or choice, to make B
available or not, necessary witness otherwise available and
amenable to jurisdiction of the Court, was highlighted in
emphatic terms. That no premium upon such omission or
lapse so as to enable him to give a go-bye to the mandates
of law relating to proof of execution of a Will, as contemplated C
by these statutory provisions, was precisely underlined. In
the facts and circumstances of that case, as the second
attesting witness though available had not been summoned,
the benefit of Section 71 of Act 1872 was not extended. D
The Will was thus held to be not proved for the failure of the
attesting witness so produced, to testify as per the
ordainment of Section 63 (c) of the Act.

         43. In M. 8. Ramesh (dead) by LRS (supra), one
 Smt. Nagammanni had executed a Will. One of the attesting E
witnesses P. Basavaraje Urs, in his evidence, stated about
the presence of the other witness (naming him), the testatrix,
himself and one Sampat Iyengar to be present when the
Will was written. He deposed further that one Mr. Narayan F
Murthi was the scribe. This witness proved that the Will was
signed by Smt. Nagammanni and that he had signed the
document too in her presence. On a consideration of the
totality of the circumstances emerging from the narration of
the attesting witness, this Court held that the omission on G
the part of this witness to specifically state about the signature
of the other witness on the Will in presence of the testatrix
did amount to his failure to recollect the said fact and thus
the deficiency could permissibly be replenish~d by the aid
of Section 71 of the Act 1872. In no uncertain terms, this H
434         SUPREME COURT REPORTS                  [2015] 6 S.C.R.


A     Court did hold that the issue of validity of the Will was to be
      considered in context of the attendant singular facts.

         44. The legal propositions adumbrated by the judicial
  pronouncements, adverted to hereinabove, do not admit of
B any exception. However, these are of no avail to the appellant
  herein in the conspectus of present facts. The evidence of
  the witness AW 1, AW 3 and AW 5 does not exhibit either
  denial of the execution of the Will or their failure to recollect
  the said phenomenon and thus, does not attract the
C applicability of Section 71 of the Act 1872.

          45. A Will as an instrument of testamentary disposition
  of property being a legally acknowledged mode of
  bequeathing a testator's acquisitions during his lifetime, to
o be acted upon only on his/her demise, it is no longer res
  integra, that it carries with it an overwhelming element of
  sanctity. As understandably, the testator/testatrix, as the case
  may be, at the time of testing the document for its validity,
  would not be available, stringent requisites for the proof
E thereof have been statutorily enjoined to rule out the
  possibility of any manipulation. This is more so, as many a
  times, the manner of dispensation is in stark departure from
  the prescribed canons of devolution of property to the heirs
  and legal representatives of the deceased. The rigour of
F Section 63 (c) of the Act and Section 68 of 1872 Act is thus
  befitting the underlying exigency to secure against any self
  serving intervention contrary to the last wishes of the
  executor.

G         45.1 Viewed in premise, Section 71 of the 1872 Act
  has to be necessarily accorded a strict interpretation. The
  two contingencies permitting the play of this provision,
  namely, denial or failure to recollect the execution by the
  attesting witness produced, thus a fortiori has to be extended
H a meaning to ensure that the limited liberty granted by Section
  JAGDISH CHAND SHARMA v. NARAIN SINGH SAINI 435
(DEAD) THROUGH HIS LRS. & ORS. [AMITAVA ROY, J.]

71of1872Act does notin any manner efface or emasculate             A
the essence and efficacy of Section 63 of the Act and Section
68 of 1872 Act. The distinction between failure on the part
 of a attesting witness to prove the execution and attestation
of a Will and his or her denial of the said event or failure to
 recollect the same, has to be essentially maintained. Any         B
 unwarranted indulgence, permitting extra liberal flexibility to
these two stipulations, would render the predication of
 Section 63 of the Act and Section 68 of the 1872 Act, otiose.
The propounder can be initiated to the benefit of Section 71
of the 1872 Act only if the attesting witness/witnesses, who       C
is/are alive and is/are produced and in clear terms either
denies /deny the execution of the document or cannot
 recollect the said incident. Not only, this witness/witnesses
 has/have to be credible and impartial, the evidence adduced
ought to demonstrate unhesitant denial of the execution of         D
the document or authenticate real forgetfulness of such fact.
 If the testimony evinces a casual account of the execution
and attestation of the document disregardful of truth, and
thereby fails to prove these two essentials as per law, the        E
 propounder cannot be permitted to adduce other evidence
 under cover of Section 71 of the 1872 Act. Such a sanction
would not only be incompatible with the scheme of Section
63 of the Act read with Section 68 of the 1872 Act but also
would be extinctive of the paramountcy and sacrosanctity           F
thereof, a consequence, not legislatively intended. If the
evidence of the witnesses produced by the propounder is
 inherently worthless and lacking in credibility, Section 71 of
Act 1872 cannot be invoked to bail him (propounder) out of
the situation to facilitate a roving pursuit. In absence of any    G
touch of truthfulness and genuineness in the overall
approach, this provision, .which is not a substitute of Section
63 (c) of the Act and Section 68 of the 1872 Act, cannot be
invoked to supplement such failed speculative endeavour.

       45.2 Section 71 of the 1872 Act, even if assumed to         H
436          SUPREME COURT REPORTS              [2015] 6 S.C.R.


A  be akin to a proviso to the mandate contained in Section 63
   of the Act and Section 68 of the 1872 Act, it has to be
   assuredly construed harmoniously therewith and not divorced
   therefrom with a mutilative bearing. This underlying principle
   is inter alia embedded in the decision of this Court in the
 B Commission of Income Tax, Madras Appellant Versus Ajax
   Products Limited Respondent AIR 1965, Supreme Court
   1358.

          46. The materials on record, as a whole, also do not,
C in our comprehension, present a backdrop, in which, in
  normal circumstances, the testator would have preferred the
  appellant to be the legatee of his property as set out in the
  Will, Ex.A-1, by denying his wife, children and grand children
  who were alive and with whom he did share a very warm
D affectionate and cordial relationship. Viewed in this context,
  the bequest is exfacie unnatural, unfair and improbable thus
  reflecting on the testator's cognizant, free, objective and
  discerning state of mind at the time of the alleged
  dispensation. The suspicious circumstances attendant on
E the disposition, in our opinion, do militatively impact upon
  the inalienable imperatives of solemnity and authenticity of
  any bequest to be effected by a testamentary instrument.

              47. In the wake of the determinations made herein
 F    above, we are of the unhesitant opinion that the challenge
      laid in the instant appeal lacks in merit.

         48. The High Court, in our estimate, has appropriately
  appreciated the law and the facts in the right perspective
G and the impugned decision does not call for any interference.
  The appeals are dismissed.

               49. No cost.

H     Nidhi Jain                                 Appeals dismissed.