TMI Blog2002 (12) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... stion was not proved as required by law, having regard to Section 63 of Indian Succession Act read with Section 68 of the Indian Evidence Act,1872 the attestation of will by two witnesses was not established; the High Court committed an error in treating the scribe as an attesting witness when he did not sign as animo attestendi. The evidence of the one attesting witness examined does not establish the attestation of the will by another attesting witness; the other attesting witness though available, was not examined; the High Court committed a serious error in setting aside the judgment of the first appellate court which was based on proper appreciation of evidence in the absence of any substantial question of law that arose for consideration. On the other hand, the learned counsel for respondent urged that although Section 63 of the Succession Act requires attestation of a will at least by two witnesses but the will could be proved by examining one attesting witness as per Section 68 of the Evidence Act and by leading other evidence as per Section 71 of the Evidence Act. He fairly conceded that the scribe was not and could not be treated as an attesting witness in this cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as present and had signed, then it was open to the court to rely upon the surrounding circumstances as well as the testimony of other witnesses. The High Court also took the view that though Raikar had written down the Will he had also signed it and he could have been treated as an attesting witness as he had also signed the Will. Thus the High Court was of the opinion that the Will was proved and the District Judge was wrong in reversing the judgment and decree of the trial court. At the hearing the learned counsel for the respondent fairly submitted that Raikar was only the scribe and he was not the attesting witness. Even looking to the evidence of Raikar himself it is clear that he gave evidence as the scribe. There is nothing on record to indicate that he had any intention to attest the Will. The attesting witness Sinkar has not stated that the other attesting witness Wagle attested the Will in his presence. On the other hand, he has stated that he did not see Wagle present at the time of execution of the Will. Wagle, the other attesting witness, being alive ought to have been examined in order to prove the Will. Nothing is brought on record to show that any attempt was m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature 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 is intended to have effect as a will; (c) the most important point with which we are presently 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 sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of 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. It is thus clear that one of the requirements of due execution of will is its attestation by two or more witnesses which is mandatory. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfy the requirements of attestation of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due 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. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68, Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. This Section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go bye to the mandate of law relating to proof of execution of a will. Turning to the facts of the case on hand, it is evident that only one attesting witness Prabhakar Sinkar, examined in the case, did not prove the execution of the Will inasmuch as he did not prove the attestation of the Will by the other attesting witness Wagle who though available was not examined. The scribe examined in the case was not an attesting witness, which is clear from the evidence on record and as rightly conceded so by learned counsel for the respondent before us. Hence, it is unnecessary to go into the question whether the scribe in this case could or could not be an attesting witness. The evidence of Sinkar, the only attesting witness, does not satisfy the mandatory requirements of Section 68 of the Evidence Act. We are not in a position to accept the contention urged on behalf of the respondent that the evidence of other witnesses, namely, that of the respondent and the scribe could be considered under Section 71 of the Evidence Act. Section 71 has no appl ..... 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