M.B. RAMESH (D) BY LRS.versusK.M. VEERAJE URS (D) BY LRS. & ORS.

                    [2013] 8 S.C.R. 573


                M.B. RAMESH (D) BY LRS.                       A
                             v.
        K.M. VEERAJE URS (D) BY LRS. & ORS.
             (Civil Appeal No.1071 of 2006)

                       MAY 03, 2013
                                                              B
[H.L. GOKHALE AND RANJANA PRAKASH DESAI, JJ.]

      Evidence Act, 1872 - ss. 68 and 71 - Proof of execution
of Will - Suit on the basis of a Will - Trial court and first
appellate court dismissed the suit holding that the Will was C
not proved as it did not fulfill the requirement of s. 63(c) of
Succession Act - High Court in second appeal decreed the
suit - Held: In the facts of the case, the 'Will' can be said to
have been proved with the aid of other evidence of attendant
circumstances which is permissible u/s. 71 - Suit decreed - D
Succession Act, 1925 - s.63(c).

    Will:

     Examination of Will - Role of court - Held: Role of the
court is limited to examining whether the instrument E
propounded as the last Will of the deceased is or is not that
by the testator, and whether it is product of free and sound
disposing mind.

     Proof of Will - Standard of evidence - Held: A Will has F
to be proved like any other document, except that the
evidence should additionally satisfy the requirements of s.63
of Succession Act and of s. 68 of Evidence Act - Succession
Act, 1925 - s.63 - Evidence Act, 1872 - s.68.

    Code of Civil Procedure, 1908 - s.100 - Second appeal G
- Scope of - Held: Second appeal can be entertained even
on the question of fact - Whether a particular question is a
substantial question of law, depends on facts and
                            573                               H
    574      SUPREME COURT REPORTS                   [2013] 8 S.C.R.

                                 ..
A   circumstances of each case - Construction of a document of
    title or the document which is foundation of the rights of parties,
    raises a question of law.

         The respondents-plaintiffs filed suit, on the strength
    of the Will executed by the testatrix and prayed for
B
    declaration of their title to the property and for permanent
    injunction, restraining the appellants-defendants from
    interfering with their possession thereof. The trial court
    as well as the first appellate court held that the plaintiffs
C   failed to prove the Will, as the requirement of s.63(c) of
    Succession Act, 1925 was not fulfilled and dismissed the
    suit. High Court, in second appeal framed question of law
    as to whether the concurrent findings that plaintiffs have
    not proved the Will was bad in law and the finding in that
    regard was perverse and contrary to the evidence on
D   record? Deciding the question of law in favour of the
    plaintiffs, the High Court decreed the suit.

        The questions for consideration in the present appeal
    were whether the Will of the testatrix was validly executed
    and duty proved by the plaintiffs; and whether the High
    Court was right in interfering in exercise of power u/s.100
    CPC, into the concurrent findings of facts.

          Dismissing the appeal, the Court

F        HELD: 1.1. A Will, has to be executed in the manner
    required by s.63 of the Succession Act, 1925. Section 68
    of the Evidence Act requires the Will to be proved by
    examining at least one attesting witness. Section 7, of
    the Evidence Act is another connected section "which is
G   permissive and an enabling section permitting a party to
    lead other evidence in certain circumstances", and in a
    way reduces the rigour of the mandatory provision of
    Section 68. Section 71 is meant to lend assistance and
    come to the rescue of a party who had done his best, but
H   would otherwise be let down if other means of proving
 M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS           575
             (D) BY LRS. & ORS.

due execution by other evidence are not permitted. At the A
same time, the section cannot be read to absolve a party
of his obligation under Section 68 of the Evidence Act
read with Section 63 of the Succession Act to present in
evidence a witness, though alive and available. [Para 16]
[587-F-H; 588-A-B]                                        B

     Janki Narayan Bhoir vs. Narayan Namdeo Kadam 2003
(2) SCC 91: 2002 (5) Suppl. SCR 175 - referred to.

     1.2. In the present case, the requirement of Section
68 of the Evidence Act is satisfied, since one attesting C
witness i.e. PW-2 was called for the purpose of proving
the execution of the Will, and he has deposed to that effect.
PW-2 has stated that he has signed the Will in the presence
of the testatrix, and she has also signed the Will in his
presence. However his evidence was silent on the issue D
as to whether the testatrix executed the Will in the
presence of another attesting witness and whether he also
signed as attesting witness in the presence of the testatrix.
Section 63 (c) of the Succession Act very much lays down
the requirement of a valid and enforceable Will that it shall E
be attested by two or more witnesses, each of whom has
seen the testator sign or affix his mark to the Will, and each
of the witnesses has signed the Will in the presence of ·
the testator. A Will has to be proved like any other
document except that evidence tendered in proof of a Will F
should additionally satisfy the requirement of Section 63
of the Succession Act, apart from the one under Section
68 of the Evidence Act. [Para 17] (589-C-G]

     R. Venkatachala Iyengar vs. B N. Thimmajamma AIR
1959 SC 443: 1959 Suppl. SCR 426; Smt. Jaswant Kaur G
vs. Smt Amrit Kaur AIR 1977 SC 74: 1977 (1) SCR 925 -
relied on.

    1.3. In the present case, the fact that the second
attesting witness was present at the time of execution of H
    576     SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A   the Will was not contested by the defendants by putting
    the question to PW2 that the other attesting witness was
    not present when the Will was executed. Wherever the
    opponent declines to avail himself of the opportunity to
    put his essential and material case in cross-examination,
8   it must follow that he believed that the testimony given
    could not be disputed at all. It is a rule of essential justice.
    [Para 20) [593-F-H]
        A.E.G. Carapiet vs. A. Y. Derderian AIR 1961 Calcutta
    359 - referred to.
c      1.4. It is true that in the present case, there is no
  specific statement by PW2 that he had seen the other
  attesting witness sign the Will in the presence of the
  testatrix, but he has stated that the other attesting witness
  had also signed the document. He has proved his
D signature, and on the top of it, he has also stated in the
  cross-examination that the other witness, the testatrix
  himself and one 'S' and the writer of the Will were all
  present while writing the Will on 24.10.1943 which was
  registered on the very next day. This statement by
E implication and inference will have to be held as proving
  the required attestation by the other witness. This
  statement alongwith the attendant circumstances placed
  on record would certainly constitute proving of the Will
  by other evidence as permitted by Section 71 of the
F Evidence Act. [Para 21) [594-E-G]
        Maha/axmi Bank Limited vs. Kamkhya/al Goenka AIR
    1958 Assam 56 - referred to.
       1.5. While arriving at the finding as to whether the Will
G was duly executed, the Court must.~~tisfy its con.science
  having regard to the totality of circumstances. The
  Court's role in matters concerning the Wills is limited to
  examining whether the instrument propounded as the
  last Will of the deceased is orjs not that by the testator,
H and whether it is the product of the free and sound
 M.B. RAMESH (0) BY LRS. v. K.M. VEERAJE URS            577
             (D) BY LRS. & ORS.

disposing mind. [Para 24J [597-C-E]                           A

    R. Venkatachala Iyengar vs. B N. Thimmajamma AIR
1959 SC 443: 1959 Suppl. SCR 426; Smt. Jaswant Kaur
vs. Smt Amrit Kaur AIR 1977 SC 74: 1977 (1) SCR 925;
Gurdev Kaur vs. Kaki 2006 (1) SCC 546 - relied on.
                                                              B
     Vishnu Ramkrishana vs. Nathu Vithal AIR 1949 Bombay
266 - referred to.

     1.6. In the present matter, the issue with respect to
the due execution of the Will was decided by the trial c
court, as well as by the first appellate court on the basis
of an erroneous interpretation of the evidence on record
regarding the circumstances attendant to the execution
of the Will. The property mentioned in the Will is
admittedly ancestral property of the testatrix. She had to 0
face a litigation, initiated by her husband, to retain her title
and possession over this property. Besides, she could
get the amounts for her maintenance from her husband
only after a court battle, and thereafter also she had to
enter into a correspondence with the appellant to get E
those amounts from time to time. The appellant is her
stepson whereas the respondents are sons of her
cousin. She would definitely desire that her ancestral
property protected by her in a litigation with her husband
does not go to a stepson, but would rather go to the
relatives on her side. This context cannot be ignored, F
while examining the validity of the Will. [Para 24] [597-E-
H; 598-A]
     1.7. It cannot be said that merely because the Will
was more than 30 years old, a presumption under Section G
90 of the Evidence Act, 1872 ought to be drawn that the
document has been duly executed and attested by the
persons by whom it purports to have been executed and
attested. A presumption regarding documents 30 years
old does not apply to a Will. A Will has to be proved in H
    578      SUPREME COURT REPORTS             [2013] 8 S.C.R.


A   terms of Section 63 (c) of the Succession Act read with
    Section 68 of the Evidence Act. [Para 15] [587-C-EJ

          Bharpur Singh vs. Shamsher Singh 2009 (3) SCC 687:
    2008 (17) SCR 517 - relied on.
B       1.8. Thus, the plaintiffs/respondents have proved that
  the .testatrix had duly executed a Will on 24.10.1943 in
  favour of the plaintiffs, and bequeathed the suit properties
  to them. She got the Will registered on the very next day.
  The High Court was right in holding that the findings of
C the trial and appellate court, though concurrent, were bad
  in law and perverse and contrary to the evidence on
  record. The suit filed by the respondents would stand
  decreed. They are hereby granted a declaration of their
  title to the suit property, and for a permanent injunction
D restraining the defendants from interfering with their
  possession thereof. In case their possession has been
  in any way disturbed, they will be entitled to recover the
  possession of the concerned property, with future
  mesne profits. [Para 25] [598-B-EJ
E
       2. Whether a particular question is a substantial
  question of law or not, depends on the facts and
  circumstances of each case. The construction of a
  document of title or of a document which is the
F foundation of the rights of parties, necessarily raises a
  question of law. In the present case, when the execution
  of the Will and construction thereof was the subject
  matter of consideration, the framing of the question of law
  cannot be faulted. There is no prohibition to entertain a
  second appeal even on question of fact, provided the
G court is satisfied that the findings of the courts below
  were vitiated by non-consideration of relevant evidence
  or by showing erroneous approach to the matter and
  findings recorded in the court below are perverse. [Para
  14] [586-F-H; 587-A, B-CJ
H
 M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS          579
             (D) BY LRS. & ORS.
   Chunilal Mehta vs. Century Spinning and Manufacturing     A
Company AIR 1962 SC: 1962 Suppl. SCR 549- followed.

    Santosh Hazari vs. Purushottam Tiwari 2001 (3) SCC
179: 2001 (1) SCR 948; Union of India vs. Ibrahim Uddin
2012 (8) sec 148: 2012 (8) SCR 35 - relied on.
                                                             B
   Narayanan Rajendran vs. Lekshmy Sarojini 2009 (5)
SCC 264: 2009 (2) SCR 71 - referred to.
                    Case Law Reference:
    2009 (2) SCR 71              referred to    Para 13      C
    1962 Suppl. SCR 549         followed        Para 14
    2001 (1) SCR 948             relied on      Para 14
    2012 (8) SCR 35              relied on      Para 14
                                                             D
    2008 (17) SCR 517           relied on       Para 15
    2002 (5) Suppl. SCR 175 referred to         Para 16
    1959 Suppl. SCR 426         relied on       Para 17
    1977 (1) SCR 925            relied on                    E
                                                Para 18
    AIR 1961 Calcutta 359       referred to     Para 20
    AIR 1958 Assam 56           referred to     Para 22
    AIR 1949 Bombay 266         referred to     Para 23      F
    1959 Suppl. SCR 426         relied on       Para 24
    1977 (1) SCR 925            relied on       Par:i 24
    2006 (1) sec 546            relied. on      Para 24
                                                             G
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1071 of 2006.

    From the Judgment & Order dated 23.01.2004 of the High
Court of Karnataka at Bangalore in R.S.A. No. 546 of 1996.
                                                             H
    580      SUPREME COURT REPORTS                   [2013) 8 S.C.R.


A       Basava Prabhu S. Patil, B. Subrahmanya Prasad. Anirudh
    Sanganeria for the Appellants.

        Anand Sanjay M. Nuli, L.K. Sharma, V.N. Raghupathy for
    the Respondents.
B         The Judgment of the Court was delivered by

          H.L. GOKHALE J. 1. This Civil Appeal raises the question
    as to whether the will of one Smt. Nagammanni was validly
    executed, and whether the same was duly proved by the
c   respondent no.1 and another (original plaintiffs). There is one
    more connected issue raised in this appeal as to whether a
    learned Judge of the High Court of Karnataka was right in
    interfering in Second Appeal, into the concurrent findings of the
    Trial Court and the Lower Appellate Court in exercise of High
o   Court's powers under Section 100 of Code of Civil Procedure.

    Facts leading to this Civil Appeal are as follows:-

         2. The respondent no.1 and another, the original plaintiffs
    are the sons of a cousin of one Smt. Nagammanni who died
E   on 21.11.1970. It is claimed by them that she left behind a will
    executed way back on 24.10.1943, and registered with the
    Sub-Registrar at Mysore, on 25.10.1943. The original plaintiffs
    claimed that through the said will she has bequeathed her
    property in their favour. The property referred in the will is her
F   ancestral property. The property of late Smt. Nagammanni
    consisted of 11 parcels of dry land situated in village
    Mallinathpuram, and 2 parcels of wet land situated in village
    Kaggalli, both in taluk Mallavalli in district Mandya, State of
    Karnatka. Out of these 11 parcels of dry land those at SI. Nos.2,
G   5 and 10 (from the list referred in the plaint) were 11ot covered
    in the will.

        3. It was the case of the original plaintiffs that they were in
    possession of these parcels of land, and their possession was
    sought to be disturbed by the appellant herein (original
H
  M.B. RAMESH (0) BY LRS. v. K.M. VEERAJE URS                   581
       (0) BY LRS. & ORS. [H.L. GOKHALE, J.]
defendant no.1 and others). Smt. Nagammanni is the widow                A
of one C. Basavaraje Urs, whereas the appellant is the son of
this C. Basavaraje Urs from his second wife. After the death
of Smt. Nagammanni, the plaintiffs, as well as the defendants,
applied for entering their names in the revenue records as the
owners of the concerned lands. The Mutation Registrar however           B
passed an order on 29.3.1971, in favour of the defendants. The
plaintiffs preferred an appeal against the same to the Assistant
Commissioner Mandya. However, when they found that taking
advantage of the said order the defendant No 1 was trying to
disturb their possession over the suit properties, they were            c
required to file a suit, on the basis of the will, which they filed
in the Court of Principal Civil Judge at Mandya, and which was
numbered as Suit No.32of1975. They prayed for a declaration
of their title to the suit property, and for a permanent injunction
restraining the defendants from interfering with their possession
                                                                        0
thereof. Alternatively, they prayed that in case it is held that they
were not in possession, a decree be granted for recovery of
possession of the property with future mesne profits.

     4. The suit was contested by the defendants, the appellant
herein, by contending that Smt. Nagammanni was not the                  E
owner of the suit property, and in any case the will relied upon
by the respondents was not a valid one. It was additionally
submitted that the relations of Smt. Nagammanni and the
appellant were cordial, and the claimed will must have been
revoked, which revocation was being suppressed by the                   F
respondents.

     5. The learned trial judge raised in all ten issues. The first
out of these issues was whether the plaintiffs proved that the
suit property rightly belonged to Smt. Nagammanni, and the              G
learned Judge answered it in the affirmative. This finding has
not been disturbed by the fist appellate court, nor seriously
contested in the present Civil Appeal also. It is the second issue
framed by the trial judge which is the crucial one, namely,
whether the plaintiffs prove that Smt. Nagammanni executed a
                                                                        H
              SUPREME COURT REPORTS                    [2013] 8 S.C.R.


A   registered will dated 24.10.1943 in favour of the plaintiffs, and
    bequeathed the suit properties to them.

            6. The plaintiff no.1 (PW-1) examined himself in support
     of his case. He examined three more witnesses in support, out
8    of whom the second witness P. Basavaraje Urs (PW-2) is the
     most relevant one. The defendants examined three witnesses
     though nothing much turns on their evidence. Documentary
     evidence was also produced by both the parties, which has
     been considered by the courts below. The respondent no.1 /
     plaintiff identified the signatures made by Smt. Nagammanni
C    at two different places on the will (exhibit P-3). Those signatures
     were marked as P-3 (a) and P-3(d). While cross-examining
     him, the appellant produced two inland letters written by Smt.
     Nagammanni to claim that their relations had become cordial,
     but it must also be noted that therein she had claimed her
D    maintenance amount from the appellant. The respondent no.1
    -identified the signatures of Smt. Nagammanni on those two
     letters, and they were marked as Exhibits 04 and 05. Theses
    -signatures were clearly comparable with her signatures on the
     will. This was accepted by the learned trial judge by observing
E    that "on a comparison of the signatures I find there is some
     force in this contention. The signatures tally". This finding of the
     trial judge is neither disturbed by the first appellate court nor
     by the High Court.

F       7. The next witness on behalf of the respondent no.1/
  plaintiff was one P. Basavaraje Urs (PW-2). He was working
  as a Patel (Village Officer) at village Mallinathpuram, in district
  Mandya, at the relevant time. He is an attesting witness to the
  will. He produced land revenue receipts containing his
G signatures, which were marked as Exhibits P7 to P14 and
  P19. He proved his own signature on the will by comparing it
  with his signatures on these Exhibits P7 to P14 and P19. He
  stated in his cross-examination that, apart from him, two other
  persons were attesting witnesses, namely, M. Mallaraje Urs and
H Sampat lyanger. However, by the time his evidence was being
 M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS 583
      (D) BY LRS. & o'RS. [H.L. GOKHALE, J.]
recorded in November 1978, both of them had passed away.          A
He stated that he could identify the hand writing and signature
of M. Mallaraje Urs. The signature of M. Mallaraje Urs on the
will was marked as Exhibit P3 (h). He also identified the
signatures of Smt. Nagammanni on the will i.e. P3 (a) and P3
(d). He stated that she signed the will in his presence and he    B
also signed the same in her presence. This part of the evidence
of PW1 and PW-2 has remained undisturbed. Thus, it can be
safely said that Smt. Nagammanni has executed the will (Exhibit
P3) which also bears the signatures of PW-2 P. Basavaraje
Urs, and one M. Mallaraje Urs.                                    c
      8. The appellants tried to dispute the validity of the will by
drawing attention of the Court to various circumstances. They
disputed the presence of P. Basavaraje Urs at the time of
signing of the will by asking him questions as to when did he
come down to Mysore on that day from Mallinathpuram, and D
what did he do on that date. The learned trial judge, as well as
the judge of the first appellate court, has been impressed by
some of the discrepancies in this behalf appearing in his
statement, and which were highlighted by the appellant. The
fact, however, remains that PW-2 was giving his deposition E
some 35 years subsequent to the execution of the will, and
therefore not much credence can be given to such
discrepancies in his evidence. It was also submitted on behalf
of the appellant that it was not clear as to how and when the
will was discovered by the respondents/plaintiffs herein. Further, F
much emphasis was laid on the fact that when the will was
made by Smt. Nagammanni, she was just about 40 years of
age, and still described herself in the will as old and infirm. It
was also contended that it was surprising that though the will
was made some 35 years ago, the respondents/plaintiffs did G
not know anything about it until the death of Smt. Nagammanni.
As far as the writing of the will is concerned, certain doubts
were raised by pointing out that the writing was not so very
continuous, and the signatures thereon appeared to have been
adjusted. The evidence of PW-2 was also sought to be assailed H
    584     SUPREME ,COURT REPORTS                 [2013] 8 S.C.R.


A   by contending that he was an interested witness. It was pointed
    out, for that purpose, that in an earlier suit, arising out of a
    mortgage of a property of Smt. Nagammanni, he had feigned
    ignorance about the place where the will was written or the
    persons who were present at that time.
B
        9. As far as this objection is concerned, it must be stated
  and cannot be denied that in the earlier suit, PW2 had very
  much deposed that he was an attesting witness to the will.
  Similarly, about Smt. Nagammani describing herself as an old
C person, it must be noted that what she had stated was that she
  was getting old. Such a statement by a person will always
  depend upon the perception of the person concerned about the
  condition of his or her health. It appears that, in view of her
  strained relations with her husband, she wanted her property
  to be protected, and wanted to make a provision that it should
D devolve on her relatives. It is another matter that she lived long,
  thereafter. Similarly, there is no substance in the plea of the
  defendant No 1 that his relations with Smt. Nagammani had
  become cordial and she must have revoked the will. If that was
  so, he would have surely produced such a document of
E revocation. Similarly, no issue can be made out of the
  production and reliance on the will, some 35 years subsequent
  to its execution. There is no dispute about Smt. Nagammani's
  signature on the will, and her wishes are clear. It is only when
  the properties bequeathed under the will had to be protected,
F that the will was required to be produced and relied upon. A
  will is required to be acted upon, only after the testator passes
  away, and in the instant case immediately when the occasion
  arose, the will was produced and relied upon. In the
  circumstances, we do not find much force in any of these
G objections.

        10. As against these discrepancies in the evidence of PW-
  2, it was emphasized on behalf of the respondent no.1/plaintiff
  that C. Basavaraje Urs, the husband of Smt. Nagammanni had
H earlier filed a suit against her, claiming these very properties
 M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS                 585
      (D) BY LRS. & ORS. [H.L. GOKHALE, J.)

as his own properties and that suit came to be dismissed,           A
which finding was confirmed in appeal. It was also pointed out
that the appellant was the son of C. Basavaraje Urs from his
second wife, and was required to pay maintenance to Smt.
Nagammanni, as required by a Court order. It was also
submitted by the plaintiffs that the will was a document which      B
was more than 30 years old, and under Section 90 of Evidence
Act, the Court is expected to presume that the signature in
every part of the document is in the hand writing of the person
concerned, and that the document was duly executed.
                                                                    c
     11. The trial court accepted the submissions on behalf of
the appellant herein, and held that the plaintiffs had failed to
prove the will since it had not come in the evidence of PW-2
that Smt. Nagammanni had executed the will in the presence
of the second witness M. Mallaraje Urs, or that this M. Mallaraje   D
Urs had also signed the will in her presence. Thus, the
requirement of Section 63 (c) of the Indian Succession Act,
1925 ('Succession Act' for short) was not fulfilled viz. that two
or more witnesses have to see the testator sign or affix his
mark to the will, and each of the witnesses have also to sign
the will in· the presence of the testator. The Court, therefore,    E
decided issue no.2 against the plaintiffs and dismissed the suit.
The first appellate Court also took the same view in Regular
Appeal No. 30 of 1989, and dismissed the appeal filed by the
respondents herein.
                                                                    F
     12. The respondent/plaintiff thereafter filed a second
appeal bearing R.S.A No. 546 of 1996, wherein, a learned
Single Judge of the High Court framed the question of law in
the following words:-
                                                                    G
          "Whether the concurrent findings of the Appellate
    Court that the plaintiff have not proved the will is bad in
    law and the finding in that regard is perverse and contrary
    to the evidence on record?"

The learned Single Judge decided the said question of law in        H
    586      SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A favour of the respondents-original plaintiffs by his impugned
  judgment and order dated 23.1.2004, which has led to the
  present appeal by special leave. When the special leave
  petition came up for consideration on 11.10.2004, this court
  issued notice and directed that the status-quo as then obtaining
B be maintained. Leave to appeal was granted thereafter on
  6.2.2006. We may note that an attempt was made to settle the
  dispute by referring it to mediation, but that has not succeeded.

    Consideration of the submissions of the rival parties:
c        13. The first submission on behalf of the appellant has
  been that the learned judge of the high Court has erred by
  framing the question of law, in the manner in which he has. It
  was submitted that when the trial court and the first appellate
  court have given a concurrent finding about the invalidity of the
D will, it was a finding of fact, and the High Couri could not have
  disturbed the finding of fact by framing a question of law as to
  whether the finding was bad in law, and perverse or contrary
  to the evidence on record. Reliance was placed, in this behalf,
  on the observations of this Court in Narayanan Rajendran Vs.
E Lekshmy Sarojini reported in 2009 (5) SCC 264. That apart,
  it was submitted that in any case, the findings of the Courts
  below could not in any way be categorized as perverse, since
  they were not contrary to the evidence on record.

F        14. We may, however, note in this behalf that as held by a
  Constitution bench of this Court in Chunilal Mehta Vs. Century
  Spinning and Manufacturing Company reported in AIR 1962
  SC 1314, it is well settled that the construction of a document
  of title or of a document which is the foundation of the rights of
G parties, necessarily raises a question of law. That apart, as held
  by a bench of three judges in Santosh Hazari Vs. Purushottam
  Tiwari reported in 2001 (3) SCC 179, whether a particular
  question is a substantial question of law or not, depends on the
  facts and circumstances of each case. When the execution of
  the will of Smt. Nagammanni and construction thereof was the
H subject matter of consideration, the framing of the question of
 M.B. RAMESH (0) BY LRS. v. K.M. VEERAJE URS                 587
      (D) BY LRS. & ORS. [H.L. GOKHALE, J.]
law cannot be faulted. Recently, in Union of India Vs. Ibrahim       A
Uddin reported in 2012 (8) SCC 148, this Court referred to
various previous judgments in this behalf and clarified the legal
position in the following words:-

            "67. There is no prohibition to entertain a second       B
     appeal even on question of fact, provided the Court is
     satisfied that the findings of the courts below were vitiated
     by non-consideration of relevant evidence or by showing
     erroneous approach to the matter and findings recorded
     in the court below are peNerse."
                                                                     c
     15. At the same time we cannot accept the submission on
behalf of the respondents as well that merely because the will
was more than 30 years old, a presumption under Section 90
of the Indian Evidence Act, 1872 ('Evidence Act' for short) ought
to be drawn that the document has been duly executed and             D
attested by the persons by whom it purports to have been
executed and attested. As held by this Court in Bharpur Singh
Vs. Shamsher Singh reported in 2009 (3) SCC 687, a
presumption regarding documents 30 years old does not apply
to a will. A will has to be proved in terms of Section 63 (c) of     E
the Succession Act read with Section 68 of the Evidence Act.

     16. That takes us to the crucial issue involved in the present
case, viz. with respect to the validity and proving of the
concerned will. A Will, has to be executed in the manner F
required by S 63 of the Succession Act. Section 68 of the
Evidence Act requires the will to be proved by examining at least
one attesting witness. Section 71 of the Evidence Act is another
connected section "which is permissive and an enabling section
permitting a party to lead other evidence in certain
circumstances", as observed by this Court in paragraph 11 of G
Janki Narayan Bhoir Vs. Narayan Namdeo Kadam reported
in 2003 (2) sec .91 and in a way reduces the rigour of the
mandatory provision of Section 68. As held in that judgment
Section 71 is meant to lend assistance and come to the rescue
of a party who had done his best, but would otherwise be let H
    588       SUPREME COURT REPORTS                  [2013) 8 S.C.R.

A down if other means of proving due execution by other evidence
  are not permitted. At the same time, as held in that very
  judgment the section cannot be read to absolve a party of his
  obligation under Section 68 of the Evidence Act read with
  Section 63 of the Succession Act to present in evidence a
B witness, though alive and available. The relevant provisions of
  these three sections read as follows:

                 "Section 63 of the Succession Act

                "63. Execution of unprivileged wills.- Every testator,
C         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:-

D         (a)·····
          (b) ·····
           (c) The will shall be attested by two or more witnesses,
          each of whom has seen the testator sign or affix his mark
E         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
F         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. "

           Section 68 of the Evidence Act

G          "68. Proof of execution of document required by law to
          be attested.- If a document is required by law to be
          attested, it shall not be used as evidence until one
          attesting witness at least has been called for the purpose
          of proving it's execution, if there be an attesting witness
H         alive, and subject to the process of the Court and capable
 M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS                 589
      (D) BY LRS. & ORS. [H.L. GOKHALE, J.]

     of giving evidence ... "                                       A

      Section 71 of the Evidence Act

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

      17. In the present matter, there is no dispute that the
 requirement of Section 68 of the Evidence Act is satisfied,
since one attesting witness i.e. PW-2 was called for the            c
 purpose of proving the execution of the will, and he has
deposed to that effect. The question, however, arises as to
whether the will itself could be said to have been executed in
the manner required by law, namely, as per Section 63 (c) of
the Succession Act. PW-2 has stated that he has signed the          0
will in the presence of Smt. Nagammanni, and she has also
signed the will in his presence. It is however contended that his
evidence is silent on the issue as to whether Smt. Nagammanni
executed the will in the presence of M. Mallaraje Urs, and
whether M. Mallaraje Urs also signed as attesting witness in
                                                                    E
the presence of Smt. Nagammanni. Section 63 (c) of the
Succession Act very much lays down the requirement of a valid
and enforceable will that it shall be attested by two or more
witnesses, each of whom has seen the testator sign or affix his
mark to the will, and each of the witnesses has signed the will
in the presence of the testator. As held by a bench of three        F
judges of this Court (per Gajendragadkar J, as he then was)
way back in R. Venkatachala Iyengar Vs. B N. Thimmajamma
reported in AIR 1959 SC 443, that a will has to be proved like
any other document except that evidence tendered in proof of
a will should additionally satisfy the requirement of Section 63    G
of the Succession Act, apart from the one under Section 68 of
the Evidence Act.

     18. The propositions laid down in Venkatachala Iyengar
(supra) have been followed and explained in another judgment        H
    590       SUPREME COURT REPORTS                  (2013] 8 S.C.R.


A of a bench of three Judges in Smt. Jaswant Kaur Vs. Smt Amrit
  Kaur, reported in AIR 1977 SC 74, wherein the law has been
  crystallized by Y.V. Chandrachud J (as he then was), into the
  following propositions:-

                 "10. There is a long line of decisions bearing on the
B
           nature and standard of evidence required to prove a will.
           Those decisions have been reviewed in an elaborate
          judgment of this Court in R. Venkatachala Iyengar v. B. N.
           Thirnmajamma and Ors. [1959] Su. 1 S.C.R. 426. The
           Court, speaking through Gajendragadkar J., laid down in
c          that case the following propositions :-

                 1. Stated generally, a will has to be proved like
                 any other document, the test to be applied being
                 the usual test of the satisfaction of the prudent
D                mind in such matters. As in the case of proof of
                 other documents, so in the case of proof of wills,
                 one cannot insist on proof with mathematical
                 certainty.

                 2. Since Section 63 of the Succession Act
E
                 requires a will to be attested, it cannot be used as
                 evidence until, as required by Section 63 of the
                 Evidence Act, one attesting witness at least has
                 been called for the purpose of proving its
                 execution, if there be an attesting witness alive and
F                subject to the process of the court and capable of
                 giving evidence.

                 3. Unlike other documents, the will speaks from
                 the death of the testator and therefore the maker
G                of the will is never available for deposing as to the
                 circumstances in which the will came to be
                 executed. This aspect introduces an element of
                 solemnity in the decision of the question whether
                 the document propounded is proved to be the last
H                will and testament of the testator. Normally, the
M.B. RAMESH (D} BY LRS. v. K.M. VEERAJE URS             591
     (D} BY LRS. & ORS. [H.L. GOKHALE, J.]
        onus which lies on the propounder can be taken         A
        to be discharged on proof of the essential facts
        which go into the making of the will.

       4. Cases in which the execution of the will is
       suffounded by suspicious circumstances stand on         B
       a different footing. A shaky signature, a feeble
       mind, an unfair and unjust disposition of property,
       the propounder himself taking a leading part in the
       making of the will under which he receives a
       substantial benefit and such other circumstances
       raise suspicion about the execution of the will. That   C
       suspicion cannot 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
       at the time when the will was made, or that those       D
       like the wife and children of the testator who would
       normally receive their due share in his estate were
       disinherited because the testator might have had
       his own reasons for excluding them. The presence
       of suspicious circumstances makes the initial           E
       onus heavier and therefore, in cases where the
       circumstances attendant upon the execution of the
       will excite the suspicion of the court, the
       propounder must remove a/I legitimate suspicions
       before the document can be accepted as the last         F
       will of the testator.

       5. It is in connection with wills, the execution of
       which is suffounded by suspicious cir.cumstance
       that the test of satisfaction of the judicial G
       conscience has been evolved. That test
       emphasises that in determining the question as
       to whether an instrument produced before the court
       is the last will of the testator, the court is called
       upon to decide a solemn question and by reason
                                                             H
    592      SUPREME COURT REPORTS                    [2013] 8 S.C.R.


A                of suspicious circumstances the court has to be
                 satisfied fully that the will has been validly
                 executed by the testator.

                 6. If a caveator alleges fraud, undue influence,
                 coercion etc. in regard to the execution of the will,
B
                 such pleas have to be proved by him, but even in
                 the absence of such pleas, the very circumstances
                 surrounding the execution of the will may raise a
                 doubt as to whether the testator was acting of his
                 own free will. And then it is a part of the initial onus
c                of the propounder to remove al.' reasonable
                 doubts in the matter."

       19. In Janki Narayan Bhoir (supra). this Court has
  explained the inter-relation between Section 63 (c) of the
D Succession Act, 1925 and Section 68 and 71 of the Evidence
  Act, 1872. In that matter only one attesting witness to the will
  was examined to prove the will, but he had not stated in his
  deposition that the other attesting witness had attested the will
  in his presence. The other attesting witness, though alive and
E available, was not examined. The Court noted the relevant facts
  in para 5 of the judgment (as reported in SCC) as follows:-

                 "Prabhakar Sinkar, the attesting witness, in his
          deposition stated that he did not know whether the other
          attesting witness Ramkrishna Wagle was present in the
F         house of the respondent at the time of execution of the
          will. He also stated that he did not remember as to whether
          himself and Raikar were present when he put his
          signature. He did not see the witness Wagle at that time;
          he did not identify the person who had put the thumb
G         impression on the will. The scribe Raikar in his evidence
          stated that he wrote the will and he also stated that he
          signed on the will deed as a scribe. He further stated that
          the attesting witnesses, namely, Wagle and Prabhakar
          Sinkar are alive."
H
 M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS                   593
      (D) BY LRS. & ORS. [H.L. GOKHALE, J.]
On this background, the Court held at the end of the para 6 of         A
the judgment that "it is true that although a will is required to be
attested by two witnesses it could be proved by examining one
of the attesting witnesses as per Section 68 of the Indian
Evidence Act", but it also noted in paragraph 9 that "that one
of the requirements of due execution of a will is its attestation      B
by two or more witnesses, which is mandatory." In paragraphs
11 and 12 of the judgment, the Court noted the relevance of
Section 71 of the Evidence Act by stating that "aid of Section
71 can be taken only when the attesting witnesses who have
been called, deny or fail to recollect the execution of the            C
document to prove it by other evidence." "Section 71 has no
application when the one attesting witness, who alone has been
summoned, has failed to prove the execution of the will and the
other attesting witness though available has not been
examined." In the facts of the case, therefore, the Court held
                                                                       0
that attestation of the will as required by Section 63 of the
Succession Act was not established which was equally
necessary.

     20. In the present case, we may note that in para 21 of
his cross examination, P. Basavaraje Urs has in terms stated,          E
"Mr. Mallaraje Urs and Smt. Nagammanni, myself and one
Sampat lyanger were present while writing the will." One Mr.
Narayanmurti was also present. In para 22 he has stated that
Narayanmurti had written Exhibit 3 (will) in his own handwriting
continuously. The fact that M.Mallaraje Urs was present at the         F
time of execution of the will is not contested by the defendants
by putting it to PW2 that M. Mallaraje Urs was not present when
the will was executed. As held by a Division Bench of the
Calcutta High Court in a matter concerning a will, in para 10 of
A.E.G. Carapiet Vs. A. Y. Derderian reported· in [AIR 1961             G
Calcutta 359], .... 'Wherever the opponent has 'declined to avail
himself of the opportunity to put his essential and material
case in cross-examination, it must follow that he believed that
the testimony given could not be disputed at all. It is a rule of
essential justice". As noted earlier the will was executed on
                                                                       H
    594      SUPREME COURT REPORTS                    [2013] 8 S.C.R.


A   24.10.1943 in the office of the advocate Shri Subha Rao
    situated at Mysore, ancLwas registered on the very next day at
    Mysore. The fact that the Will is signed by Smt. Nagammanni
    in the presence of PW2 on 24:10.1943 has been proved, that
    PW2 signed in her presence has also been proved. Can the
B   signing of the will by Smt. Nagammanni in the presence of M.
    Mallaraje Urs and his signing in her presence as well not be
    inferred from the above facts on record? In our view, in the facts
    of the present case, the omission on the part of PW2 to
    specifically state that the signature of M. Mallaraje Urs on the
C   will (which he identified) was placed in the presence of Smt.
    Nagammani, and that her signature (which he identified) was
    also placed in the presence of M. Mallaraje Urs, can be said
    to be a facet of not recollecting about the same. This deficiency
    can be taken care of by looking toJhe other evidence of
    attendant circumstances placed on record, which is permissible
0   under Section 71 of the Evidence Act.

          21. The issue of validity of the will in the present case will
    have to be considered in the context of these facts. It is true
    that in the case at hand, there is no specific statement by PW2
E   that he had seen the other attesting witness sign the will in the
    presence of the testator, but he has stated that the other witness
    had also signed the document. He has proved his signature,
    and on the top of it he has also stated in the Cross examination
    that the other witness (Mr. Mallaraje Urs), Smt. Nagammani,
F   himself and one Sampat lyanger and the writer of the will were
    all present while writing the will on 24.10.1943 which was
    registered on the very next day. This statement by implication
    and inference will have to be held as proving the required
    attestation by the other witness. This statement alongwith the
G   attendant circumstances placed on record would certainly
    constitute proving of the will by other evidence as permitted by
    Section 71 of the Evidence Act-

          22. While drawing the appropriate inference in a matter
    like this, a Court cannot disregard the evidence on the attendant
H
 M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS                  595
      (D) BY LRS. & ORS. [H.L. GOKHALE, J.]
circumstances brought on record. In this context, we may              A
profitably refer to the observations of a Division Bench of the
Assam High Court in Mahalaxmi Bank Limited Vs.
Kamkhyalal Goenka reported in [AIR 1958 Assam 56], which
was a case concerning the claim of the appellant bank for
certain amounts based on the execution of a mortgage deed.            B
The execution thereof was being disputed by the respondents,
amongst other pleas, by contending that the same was by a
purdahnashin lady, and the same was not done in the presence
of witnesses. Though the evidence of the plaintiff was not so
categorical, looking to the totality of the evidence on record, the   c
Court held that the execution of the mortgage had been duly
proved. While arriving at that inference, the Division Bench
observed:-

           "11 ......... It was, therefore, incumbent on the
    plaintiff to prove its execution and attestation according        D
    to law. It must be conceded that the witnesses required
    to prove attestation has (sic) not categorically stated that
    he and the other attesting witnesses put their signatures
    (after having seen the execution of the document) in the
    presence of the executants. Nevertheless, the fact that           E
    they actually did so can be easily gathered from the
    circumstances disclosed in the evidence. It appears that
    the execution and registration of the document all took
    place at about the same time in the house of the
    defendants. The witnesses not only saw the executants             F
    put their signatures on the document, but that they also
    saw the document being explained to the lady by the
    husband as also by the registering officer.

     They also saw the executants admit receipt of the                G
    consideration, which was paid in their presence. As all this
    happened at the same time, it can be legitimately inferred
    that the witnesses also put their signatures in the
    presence of the executants after having seen them
    signing the instrument.. .......
                                                                      H
    596       SUPREME COURT REPORTS                     [2013] 8 S.C.R.


A          ......... There is no suggestion here that the execution
          and attestation was not done at the same sitting. In fact,
          the definite evidence here is that the execution and
          registration took place at the same time. It is, therefore,
          almost certain that the witnesses must have signed the
B         document in the presence of the executants ..... .. "

        23. The approach to be adopted in matters concerning
  wills has been elucidated in a decision on a first appeal by a
  Division Bench of Bombay High Court in Vishnu Ramkrishana
  Vs. Nathu Vithal reported in [AIR 1949 Bombay 266]. In that
C matter, the respondent Nathu was the beneficiary of the will. The
  appellant filed a suit claiming possession of the property which
  was bequeathed in favour of Nathu, by the testatrix Gangabai.
  The suit was defended on the basis of the will, and it came to
  be dismissed, as the will was held to be duly proved. In appeal
D it was submitted that the dismissal of the suit was erroneous,
  because the will was not proved to have been executed in the
  manner in which it is required to be, under Section 63 of Indian
  Succession Act. The High Court was of the view that if at all
  there was any deficiency, it was because of not examining more
E than one witness, though it was not convinced that the testatrix
  Gangabai had not executed the will. The Court remanded the
  matter for additional evidence under its powers under Order 41
  Rule 27 CPC. The observations of Chagla C.J., sitting in the
  Division Bench with Gajendragadkar J. (as he then was in
F Bombay High Court) in paragraph 15 of the judgment are
  relevant for our purpose:-

                  "15 .. ....... We are dealing with the case of a will and
          we must approach the problem as a Court of Conscience.
          It is for us to be satisfied whether the document put forward
G
          is the last will and testament of Gangabai. If we find that
          the wishes of the testatrix are likely to be defeated or
          thwarted merely by reason of want of some technicality,
          we as a Court of Conscience would not permit such a
          thing to happen. We have not heard Mr. Dharap on the
H
 M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS                   597
      (D) BY LRS. & ORS. [H.L. GOKHALE, J.]
     other point; but assuming that Gangabai had a sound               A
     and disposing mind and that she wanted to dispose of
     her properly as she in fact has done, the mere fact that
     the propounders of the will were negligent - and grossly
     negligent in not complying with the requirements of S. 63
     and proving the will as they ought to have should not deter       B
     us from calling for the necessary evidence in order to
     satisfy ourselves whether the will was duly executed or
     not ........... "

                                             (emphasis supplied)
                                                                       c
      24. As stated by this Court also in R. Venkatachala
Iyengar and Smt. Jaswant Kaur (both supra), while arriving at
the finding as to whether the will was duly executed, the Court
must satisfy its conscience having regard to the totality of
circumstances. The Court's role in matters concerning the wills        D
is limited to examining whether the instrument propounded as
the last will of the deceased is or is not that by the testator, and
whether it is the product of the free and sound disposing mind
[as observed by this Court in paragraph 77 of Gurdev Kaur Vs.
Kaki reported in 2006. (1) SCC 546]. In the present matter, there      E
is no dispute about these factors. The issue raised in the
present matter was with respect to the due execution of the will,
and what we find is that the same was decided by the trial Court,
as well as by the first appellate Court on the basis of an
erroneous interpretation of the evidence on record regarding
                                                                       F
the circumstances attendant to the execution of the will. The
property mentioned in the will is admittedly ancestral property
of Smt. Nagammanni. She had to face a litigation, initiated by
her husband, to retain her title and possession over this
property. Besides, she could get the amounts for her
maintenance from her husband only after a court battle, and            G
thereafter also she had to enter into a correspondence with the
appellant to get those amounts from time to time. The appellant
is her stepson whereas the respondents are sons of her cousin.
She would definitely desire that her ancestral property protected
                                                                       H
    598      SUPREME COURT REPORTS                  [2013) 8 S.C.R.


A   by her in a litigation with her husband does not go to a stepson,
    but would rather go to the relatives on her side. We cannot
    ignore this context while examining the validity of the will.

       25. In view of the above factual and legal position, we do
  hold th,at the plaintiffs/respondents had proved that Smt.
8
  Nagammanni had duly executed a will on 24.10.1943 in favour
  of the plaintiffs, and bequeathed the suit properties to them.
  She got the will registered on the very next day. The finding of
  the Trial Court as well as the First Appellate Court on issue no.2
  was clearly erroneous. The learned Judge of the High Court
C was right in holding that the findings of the Trial and Appellate
  Court, though concurrent, were bad in law and perverse and
  contrary to the evidence on record. The second appeal was,
  therefore, rightly allowed by him. Accordingly, we dismiss the
  present civil appeal. The Suit No.32 of 1975 filed by the
D respondents in the Court of Principal Civil Judge at Mandya in
  Karnataka 'will stand decreed. They are hereby granted a
  declaration of their title to the suit property, and for a permanent
  injunction restraining the defendants from interfering with their
  possession thereof. In case their possession has been in any
E way disturbed, they will be entitled to recover the possession
  of the concerned property, with future mesne profits. In the facts
  of the present case, however, we do not order any costs.

    K.K.T.                                       Appeal dismissed.