VISHNU RAMKRISHNA WANI Vs. NATHU VITHAL WANI

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the plaintiffs for possession of certain properties, and in order to appreciate the contentions of the parties it is necessary to set out a pedigree which will explain the relationship of the parties necessary to understand the material questions.

(2.) ONE Shivram had three sons : Narayan, Hari and Ramkrishna. Narayan had a son Madhav who died in 1936 and his sons are Murlidhar and Vasudev. Hari was married to Gangabai and Hari died on March 22, 1927. Gangabai died on July 22, 1941. Hari and Gangabai had one issue, a daughter Narmadabai who died in 1935. She was married to Natu, who is defendant No.1 in the suit. Ramkrishna died in 1939 and his widow is Gitabai, and Ramkrishna had three sons : Vishnu, Laxman and Ramchandra, who are plaintiffs Nos. 1, 2 and 3.Narayan, Hari and Ramkrishna separated a long time ago. Gangabai made a will on July 14, 1941, and by that will she disposed of the property in suit by giving a part of it to defendant No.1, another part of it to defendant No.2, who was a distant relation of Hari, and the third part to charity, appointing defendants-Nos. 1 and 2 as trustees of that charity. Defendant No.3 is a purchaser of defendant No. l's share in the property which he claims under the will of Gangabai. The defendants in answer to the plaintiffs' claim for possession of the property in suit set up Gangabai's will, and the trial Court held that Gangabai's will was proved, that under the will defendants Nos. 1 and 2 and Charity were legatees and that the plaintiffs were not entitled to succeed in the suit which they had brought. From that decision the plaintiffs have come in appeal before us and various points have been raised by Mr. Dharap on behalf of the plaintiffs.

(3.) THE will is alleged to have been executed by Gangabai by her putting her thumb impression on the will, and the execution is attested by four attesting witnesses : Dr. Amrit D. Pillay, Onkar Lahanu, Laxman Sonu Wani and Vishnu Nathu Wani. THE defendants, in support of the will, only examined one of these four attesting witnesses, and that was Dr. Pillay. It is not disputed that the other three attesting witnesses are alive and are subject to the process of the Court. It is also not disputed that as a matter of fact one of them, viz. Onkar Lahanu, was actually subpoenaed by the defendants, was present in Court for a long time and was still not examined. Mr. Dharap's contention is that the only attesting witness Dr. Pillay, assuming his evidence is to be accepted in toto, does not prove the due execution of the will, and the evidence with regard to the execution of the will cannot be supplemented by other evidence which the defendants have called. For instance, they have called the evidence of defendants Nos. 1 and 2 themselves and also the evidence of the writer. But Mr. Dharap's contention is that it is not open to the Court to travel outside the evidence of Dr. Pillay, the attesting witness, in order to come to the conclusion whether the will has been duly executed or not. We have got to look to Section 63 of the Indian Succession Act in order to ascertain what the Legislature intended to be the due execution of a will. Section 63 requires proof of three things mentioned in Sub-clauses (a), (b) and (c) of that section before it can be said that a will has been duly executed. THE first is that the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction. THE second is that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document was intended to have effect as a will, and the third, which is the most important and with which we. are concerned in this appeal, is that the will has to be attested by two or: more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the will, or must have seen some other person sigij the will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of the witnesses has to sign the will in the presence of the testator. And then the section makes a departure from the English law, viz, that it is not necessary that the witnesses should sign in the presence of each other. Turning to the evidence of Dr. Pillay which has been recorded by the trial Court, Dr. Pillay says that he went to the house of Gangabai after she had placed her thumb mark on the will, and when he came near her she acknowledged before him that the thumb mark on the document was hers. He also says that Onkar Lahanu, one of the attesting witnesses, was there when he arrived. From this evidence it is clear that as far as his own attestation is concerned, he has proved it as required by Section 63.Although he did not see Gangabai put the thumb impression on the document, she acknowledged it in his presence and he signed the will in the presence of the testatrix. But the difficulty arises with regard to the second attestation. As far as Onkar Lahanu is concerned all that this witness is in a position to say is that he was present near Gangabai when he came there. He has not seen Onkar Lahanu seeing the testatrix put the thumb impression. He cannot depose to the fact that Gangabai acknowledged to Onkar Lahanu that the thumb impression was hers. He is not in a position to say that Onkar Lahanu signed the will in the presence of the testatrix. THErefore, it is clear that reading :only the evidence of Dr. Pillay all that he established is that the will was attested by him only. THE attestation of the second witness is not established by him and, therefore, if the evidence with regard to attestation was to be confined to the evidence of Dr. Pillay, one of the important factors necessary to be established for the due execution of the will, viz. attestation by two witnesses, would be absent in this case. Mr, Desai for the respondent argues that there is ample evidence on the record which will satisfy the Court that the other witnesses attested the will in the manner required by the law, and the question that we have got to consider is whether it is open to the Court to consider other evidence for the purpose of satisfying itself that the will was attested by two witnesses.