- (1.) The Court: During progress of examination-in-chief of Mr. Harshavardhan Lodha (PW-1) on 24th June, 2019 Mr. Dhruba Ghosh learned Advocate, in question no. 761 put a question to the witness "have you seen the registered Will of Mrs. Priyamvada Devi Birla?" The witness said "Yes, I have seen the registered Will of Mrs. Priyamvada Devi Birla" In answer to question no. 762 the witness further said "I had seen this Will for the first time when it was signed by Mrs. Priyamvada Devi Birla and was witnessed by all the three witnesses and I was there with Smt. Priyamvada Devi Birla when she signed the Will and all the three witnesses signed in her presence." The witness continued to answer the questions put to him in examination-in-chief. In question no. 776 the witness was shown the main petition filed in the probate proceeding and learned advocate said "Please come to page 7 and 8 (shown) - if you recognize the signature of the person verifying the application?" The witness said "Yes, I recognize the signature of the person verifying this application. It has been signed by my father R.S. Lodha on both pages 7 and 8". Showing a document from the records of this Court the witness was asked in question no. 769 "Can you recognize the signature on page 2 of this document?" In answer the witness said "the signature on page 2 of this document is of my father R.S. Lodha". In the next question no. 770 the witness said "this is a document annexing the original registered Will of Priyamvada Debi Birla" In question no. 771 witness was asked "please come to the second annexure to this document that I have just shown you (shown) - have you seen this document before?" In answer the witness said "Yes, I have seen it" (the document was tendered and marked for identification). Examination of the witness was concluded on that day and it was resumed on 24.06.2019. When the witness was asked by his counsel on box in question no.775 "what did Dr. Vaidya do on that day?" In answer the witness said Dr. Vaidya signed the copies of the Will on the request of 'Barima' on that day." Trouble started after the said question. Mr. Kapoor learned senior counsel raised objection about the questions put to the witness and prayed for expunging, in particular, question nos. 772 and 773 and its answers. Of course, by that time the witness had already answered. Mr. Mitra, learned senior advocate in protest submitted that after the witness's answer is recorded by the Court no objection is tenable. Further objection raised by Mr. Kapoor when question no. 804 was asked. Question no. 804 is set out below: "804. Look at the document marked for identification which is annexure-P to the supplementary affidavit. Does any signature appear on this document?' /Yes. Several signatures appear on this document (Objection raised by Mr. Kapoor, learned Senior Counsel on the ground that document cannot be used as evidence and no attesting witness has been called as per the provision of Section 68 of the Evidence Act)".
(2.) Mr. Kapoor prayed for expunging question no. 804 and its answer. In order to resolve the disputes and the objections and counter objections raised by the parties the examination of the witness had to be stopped. The witness was directed to step down and he was not recalled on that day. The hearing continued not only for that day but also on the next two/three days. The question which comes up for decision now are as follows: 1. Whether question nos. 772, 773 and 804 should be expunged from evidence? 2. Whether the propounder of a Will is entitled to identify the document as Will before the attesting witnesses are produced to prove the Will. 3. Whether Order XVIII Rule 3A of the Code has also to be followed mandatorily even in case of a probate proceeding or the Court in its discretion can first call the attesting witness and then the propounder. 4. Whether the document being identified as a document of Will and the signatures thereon without proving its content can be said to have proved the document and whether the defendant is deprived of cross- examining the witness because of the document being marked for identification or the document can be said to have been used in evidence within the meaning of Section 68 of the Indian Evidence Act. It is the settled law right from the decision in the case of Sait Tarajee Khimchand and Ors. -Vs. - Yalamarti Satyam Alias Satteyya and Ors. decided by the Hon'ble Apex Court reported in 1972 (4) SCC 562 wherein the judgment delivered by Hon'ble Justice Ray it was held that "mere marking of exhibit does not give proof of document". In our case the witness for the plaintiff (PW1)/the propounder in question no. 770 identified a document from the records of this Court to be the document annexing the original registered Will of Mrs. Priyamvada Devi Birla. The said document was tendered and marked for identification without admitting the same and without being marked as an exhibit. Up to this there is no problem when a document is marked for identification but trouble arose when the learned counsel for the plaintiff started asking the witness to identify the signature of various other persons on the document including the signature of testatrix and the defendants raised objection about inadmissibility of the document without being first calling the attesting witness. Objection raised by Mr. Kapoor after the answer given by the witness to question no. 775. Mr. Mitra says that after the answer given no 'objection' can be entertained or recorded in respect of the other questions raised prior to such objection. The prior two questions are question no. 772 and 773 where the witness was asked "when did you see the document" in answer the witness said "I saw the document on 18th April when Barima signed it." And in the next question "do you remember who else were there?" In answer the witness says "Barima was there, I was there, Dr. Madan Vaidya, P.L. Agarwal and Mr. M.P. Sharma and my father R.S. Lodha were there." The question now whether the witness is competent to identify the signature of the testatrix on the Will and whether he is competent to identify the signature of other signatories or the attestors on the alleged Will and whether the objection raised by Mr. Kapoor has any substance or not.
(3.) This Court has to decide admissibility of documents before they are exhibited in evidence. Mr. Mitra submits that admissibility of the documents will be tested at the time when it will be marked as a regular exhibit. Mr. Kapoor submits that the document cannot be used in evidence unless at least one attesting witness is called. Mr. Mitra, further submits that according to Order XVIII Rule 3A of the Code of Civil Procedure it is the plaintiff who is to depose as a first witness and accordingly the plaintiff started deposing before the Court without any objection from the defendant's side. The objection was raised by the defendants when the witness tried to identify the signature on the Will. In this regard it is to be noted that Section 63 of the Indian Succession Act demonstrates that 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. These are the basic and special requirements of a valid Will. Section 63 of Indian Succession Act is set out below: "S.63. Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal 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 one witness be present at the same time, and no particular form of attestation shall be necessary." ;