RAM SWARUP Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) By this petition filed under Article 226 of Constitution of India Petitioners seek quashing of order dated 8. 4. 1980 passed by Deputy Director of Consolidation under Section 48 of Consolidation of Holdings Act (hereinafter referred as Act) in pursuance of direction issued by this Court on 28. 2. 1979 in Civil Misc. Writ Petition No. 3243 of 1975. Prior to enforcement of consolidation, dispute had arisen between parties on 13. 5. 1969 in mutation proceedings on death of one Kalka (herein referred as testator) on 9. 4. 1969 in respect of his agricultural holding. Both parties based their claim on respective will in their favour. The mutating authority allowed the application of petitioner and rejected that of opposite party No. 2 (herein after referred as opposite party ). It held that will dated 26-1-1969 in favour of opposite party was forged. It was also found that he was not related to the testator. On the other hand the will dated 5. 7. 1966 in favour of petitioners was found to be genuine. The mutating authority found that testator was brother-in-law (Sarhoo) of petitioners. He resided with them and died also in their village at Solon in Madhya Pradesh. After notification under Section 4 of the Act was issued and statements were published under Section 9 showing petitioners in basic year records opposite party staked his claim once again by filing an objection under Sec tion 9a, paragraphs 9 and 10 of which are material. It was alleged that although petitioners did not belong to testator's family yet they pursuaded him to execute a will on 5. 7. 1966 in their favour on false assurance that they shall reside at his house and look after him so long he was alive. They also falsely got it mentioned in the will that they were brothers sons and coshared with him when in fact testator had no brother. In paragraph 10 it was averred that when petitioners did not carry out their promise of residing and looking after testator he kept the opposite party (who was related to him as nephew) and being happy with his services the testator became affectionate towards him and executed second and last will on 26. 1. 1969 in his favour out of own free will and revoked the will in favour of petitioners. On pleading of parties the Conso lidation Officer did not frame any issue In respect of petitioner's will as parties were not at issue on it. On 14. 3. 1973 the Consolidation Officer rejected the objection and found that the will in favour of opposite party was not genuina. He found its execution to be shrouded by suspicious circumstan ces. According to him the will was not only got registered after the death of testator but its authority was doubtful as Ganga Prasad one of the attesting witnesses stated that it was written on stamp paper supplied by testator whereas it was on plain paper. Scribe was not produced. His presence at the time of execution of will was also doubtful. Signature of testator on will was clear and distinct when document executed in 61' was signed shakily and in 66'it was thumb marked. Presence of testator on 26th January 1969 at Jalaun was found to be doubtful as there was overwhelming evidence that testator was in Madhya Pradesh on that date. In respect of will in favour of petitioners the Consoli dation Officer found that its execution having been admitted by opposite party and he having failed to prove its revocation by will dated 26th January 1969 as alleged petitioners were entitled to be recorded as bhumidhar. In appeal the order was upheld. The appellate authority summoned the file from mutation authority and found that in will dated 26th January 1969 there was clear interpolation. He found that words 'wasiyat' in column 5 and Ram Swaroop son of Biranchi Lal (opposite party) in column 6 were added subsequently in different ink. In revision the orders were set aside. It was held that petition ers failed to prove his will in accordance with law. Against this order peti tioners had come to this Court under Article 226 of Constitution of India was allowed and the order of Deputy Director of Consolidation was quashed. A direction was issued to decide the issue arising in the case afresh in accordance with law. Revision was allowed again. It was held that admission by opposite party did not absolve petitioners from proving the will under Section 68 of the Indian Evidence Act. According to him as the petitioners did not produce any attesting witnesses nor got the will proved in accordance with law they could not claim any right on it. The most interesting finding recorded by him was in respect of the will in favour of opposite party. He found that this will was registered and from its perusal it did not appear that it was suspicious. He did not consider it necessary to discuss the various suspicious circumstances detailed by Consolidation Officer as the will on its face appeared to be genuine. Whether the approach of Deputy Director of Consolidation was designed or it was erroneous need not detain us as the order cannot be maintained for variety of reasons. In H. Venkatachda lyenger v, Thimmajmma (A. I. R. 1939 S. C. 443.) it was held that where execution of a will is disputed or it is shown to be shrouded in suspicious cir cumstances then the burden to prove and dispel those circumstances is on the persons who claims under the will. It having come in evidence that the tes tator had executed a sale deed on 11. 7. 1961 with trembling hand and thumb marked another on 28. 6. 1966, a reasonable inference arose that with passage of time the condition of testator's hand deteriorated, therefore the burden was on opposite party to explain the circumstances in which the testator is alleged to have signed the will on 26th January 1969 and that also perfectly. Not only this the Consolidation Officer found that on the date the will is said to have been executed it was established that testator was in Madhya Pradesh yet the Depu ty Director of Consolidation neither set aside the finding nor considered necessary to examine the authenticity of the will or require the opposite party to explain the circumstances in which testator's presence at Orai could be held to be established, because the signature of testator was at the proper place and legible. A curious way indeed to uphold the will. He did not even summon the file from the mutation authority to see for himself if there was any interpo lation or addition in the original will as the signature appeared to be clear to him and from that no suspicion arose. Authenticity of will could not be decided on mere visual appearance. Nor could the signature of testator at appropriate place be determinative of its due execution. What was required to be exami ned was whether the will was executed out of own volition without any pressure. In absence of any finding on these vital aspects the order of Deputy Director of Consolidation accepting the will dated 26. 1. 1969 as genuine cannot be maintained. But this alone is not sufficient. It has further to be seen if will dated 5. 7. 1966 in favour of petitioners can be considered to be genuine. From paragraphs 9 and 10 objection quoted earlier it stands out clearly that opposite party not only admitted petitioner's will but took up specific plea of revocation. It was for the reason that the Consolidation Officer did not frame issues on it obviously because parties were not at variance on it. It was urged by learned counsel for opposite party that pleadings before consolidation authorities should not be construed strictly. According to the learned counsel these allegations did not amount to any admission that the testator executed a will in favour of petitioners and even if it was then the admission should be taken as a whole and it should be held that the will was obtained fraudulen tly. From the recital which has been quoted above it is clear that the opposite party clearly admitted the execution of a will in favour of petitioners. No fraud was alleged in respect of execution on attestation of the will. What was claimed was that the petitioners did not look after the testator, therefore he revoked the will in their favour. In absence of any plea of fraud or undue influence raised on behalf of opposite party the Consolidation Officer acted in accordance with law in not framing any issue on it. In fact this was never the controversy. Learned counsel for opposite party submitted that even if allegations in paragraphs 9 and 10 are construed as admissions the petitioners were not absol ved of the responsibility of proving the will as required by Section 68 of Indian Evidence Act and the principle contained in Sec. 53 of the Indian Evidence Act admitted need not be proved was not helpful as in respect of documents which are required by law to be proved by production of attesting witnesses this sec tion has no application. Reliance was placed in Kunwar Surendra Bahadur v. Thakur Behari Singh (A. I. R. 1939 P. C. 118) and (Tallari) Fade Manikram v. Vantabatitna Periagadu (A. I. R. 1932 Mad. 148 ). It was also urged that petitioner having not raised his controversy in earlier writ petitions is barred by principle of res judicata which was applicable even to subsequent stage of the same proceedings. According to learned counsel it was incumbent on petitioners to get the will proved by producing at least one of the attesting witnesses. And this procedure had to be gone through even though the witnesses might have turned hostile. The petitioners to exhaust all possible modes of proof before he could claim that the will should be taken to be proved either because witnesses were not available or they colluded with opposite party, Reliance was placed on Hira Bibi and others v. Ram Hari and others (A. I. R. 1925 P. C. 203) Salsamania Padayeli v. Pakhisi Padayachi and others (A. I. R. 1935 Mad. 119) Kali Charan v. Suraj Bali and others (A. I. R. 1941 Oudh 89.) Manmathu Nath Kar v. Prabodh Chandra Palarhi (A. I. R. 1923 Cal. 102. ). Proof of a document required by law to be attested is contained in Section 68 of Indian Evidence Act. But before considering its applicability it may be pointed out that Section 68 of Evidence Act dispenses with proof of fact which is admitted by parties in any proceedings or suit. It normally relates to admis sion in pleadings. But does this apply to even those documents which are required by law to be attested. This has been subject-matter of controversy. A distinction appears to have been drawn by Privy Council in Mst. Hira Bibi's case in document the execution of which is admitted but the attestation is not established. In that case Hira Bibi was found to be pardanashin lady who was not seen signing the mortgate deed by one of the witnesses. It was held that admission by Hira Bibi that she 'signed the deed was not sufficient because in absence of any evidence that signature was put by her in presence of witnesses it could not amount to attestation. In other words if attestation is not proved or is missing or is defective then admission of mere execution is not sufficient to dispense with proof. But where document is found to be attested which is not challenged or denied by other side rather is admitted there hardly appears any reason to hold that despite admission in pleading the legater is bound to prove the execution on attestation of the will by calling an attesting witness. Even assuming that Section 58 was not applicable can it be said that petitioners failed to prove the will executed in their favour. For this it was necessary to mention few facts which emerge from the petitions and supplemen tary affidavits filed on behalf of parties. Ram Narain and Nazir Khan were attesting witnesses. An application was given to summon them along with other witnesses on 29. 7. 1972. But they did not attend the Court despite service of summons, therefore, an application was filed on 3. 10. 1972 for summoning them through process of Court. This application was rejected but the petitioners were permitted to challenge the order in revision on payment of Rs. 50/- as costs. According to opposite party petitioners had earlier given up those witnesses and it was for this reason that the application was rejected and cost was imposed whereas according to petitioners it was on direction of Conso lidation Officer and the petitioners counsel, who was a lawyer of not more than a years standing did not realise its importance. In any case revision was filed and the order of Consolidation Officer was set aside on 23. 10. 1972. The peti tioners were permuted to produce witnesses subject to payment of Rs. 500/- as cost by 27. 10. 1972. It appears the file did not reach by that date therefore, the cost could not be deposited. According to petitioners which the file reached after 27. 10. 1972 and the petitioners tendered the amount it was refused by opposite party. And the Consolidation Officer asked the petitioners to secure extension of time by the revisional Court. But in the meantime opposite party prevailed upon Nazir Khan to leave for Bombay and reside with his brother and dissuaded Ram Narain from appearing. The petitioners therefore found that despite payment of exhorbitant cost their purpose could not be served. On 5. 2. 1973 petitioners filed an application bringing on record certified copies of statements of attesting witnesses made before mutation authority. These allegations are not specifically denied in supplementary counter-affidavit. After the case was remanded by this Court the petitioners again moved an application tor deposit of cost which was rejected on 26. 6. 1980. Section 68 of Evidence Act provides that a document required by law to be attested shall not be used as evidence until one attesting witness has been called for the purpose of proving its execution. By proviso this requirement is dispen sed with if the document has been registered in accordance with provisions of Re gistration Act. An exception has however been in respect of will. Therefore will even if it is registered is required to be proved by calling at least one attesting witness. Sections 69 to 71 lay down the circumstances in which a document required to be attested may be proved without production of attesting witnesses. According to Section 70 the admission of a oartv to an attested document of its execution by himself shall be sufficient proof of its execution and against him. Attestation means to testify or bear witnesses. In relation to an instrument it means attestation by two or more witnesses each of whom has seen the execu tant sign or offer his mark to the instrument. According to Privy Council in Hira Bibi's case for applicability of Section 70 it is essential that it should be in respect of duly attested document. Whether a document is attested or not is primarily a question of fact. In mutation proceedings which were hotly contested between parties the attesting witnesses appeared and testified to affixa tion of testators and their own signature. The will therefore was an attested document within meaning of Section 70 of Act. Tt appears as due execution and attestation of will had been proved in mutation proceedings the opposite party did not challenge it specifically or impliedly. In the circumstances the admis sion by opposite party in paragraphs 9 and 10 of the objection was in respect of an attested document. Under Section 70 therefore it was sufficient proof of due execution. Non-production of attesting witnesses was also for no fault of petitioners. Summons had been served on the witnesses but they chose not to appear. Sub sequent giving up of the witnesses did not remain of any consequence as the revising authority allowed the revision. But it imposed onerous condition. Tt is not denied that Nazir Khan went to Bombay or Ram Narain is distantly related to opposite party nor is there any specific denial that Nazir Khan was not available and Ram Narain was won over. Even otherwise if in these circum stances the petitions developed apprehension that presence of these witnesses could not be obtained without delay or expenses therefore applied for bringing on record certified copies of statements of these witnesses In mutation proceed ings for proving the will St cannot be said that will was not proved as no attest ing witness was produced before Consolidation Officer. In the result this petition succeeds and is allowed. The order passed by Deputy Director of Consolidation is quashed. He shall now decide objection of opposite party if the will executed in favour of petitioners was revoked. Parties shall bear their own costs. .