BENGA BEHERA AND ANR. versus BRAJA KISHORE NANDA AND ORS.

Citation: [2007] 6 S.C.R. 853 · Decided: 15-05-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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BENGA BEHERA AND ANR. 
A 
v. 
BRAJA KISHORE NANDA AND ORS. 
MAY 15,2007 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
B 
WILL: 
Testatrix executed Will in favour of respondent who was stranger to 
family--{Jenuineness of Will challenged by legal heirs-Held: No independent C 
witness examined to show how testatrix came close to respondent-No 
explanation given as to why valuable agricultural land along with house 
had been gifted to respondent-Original Will has not been produced-
Burde1r-0n respondent was heavy, he being a stranger to the family which 
he failed to discharge-Trial Judge as also High Court did not take into D 
consideration effect of contradictions and inconsistencies in statement of 
witnesses and interpolation/variance in the Xerox copy of the Will vis-a-vis 
certified copy thereof-Non-production of original Will stating that Will got 
lost, gives rise to inference that Will did not contain thumb impression of 
testatrix-Testatrix was an old and ii/ lady and had no independent adviser 
in matter of execution of Will while respondent and his father being disciple E 
of h<!r Guru were in a position to dominate her mental process-Existence 
of suspicious circumstances itself sufficient to arrive at a conclusion that 
genuineness of Will has not duly been proved-Succession Act, 1925-s.63. 
Will-Loss of-Proof of-Held: It is obligatory on part of beneficiary 
to establish loss of Will, beyond all reasonable doubt-Beneficiary did not F 
say how the Will was lost-No FIR was lodged about missing of document 
before any authority-Even approximate point of time the Will was lost, was 
not stated-Loss of the original Will was, thus, not satisfactorily proved-
Evidence Act, 1872-s. 65(c). 
Will-Attestation of-Requirement of-Held: Proof of execution of a 
Will has to be attested at least by two witnesses-At least one attesting 
witness has to be examined to prove execution and attestation of the Will-
Further, it is to be proved that the executant had signed and/or given his 
853 
G 
H 
854 
SUPREME COURT REPORTS 
(2007] 6 S.C.R. 
A thumb impression in presence of at least two attesting witnesses and the 
attesting witnesses had put their signatures in presence of the executant. 
Registration Act, 1908: s.52-Signature of every person presenting a 
document for registration is required to be endorsed on every such document 
at the time of presentation-If an authority in performance of a statutory duty 
B signs a document, he does not become an attesting witness within the meaning 
of s.3 of Transfer of Property Act and s. 63 of Succession Act-''Animus 
a//estandi" is a necessary ingredient for proving attestation. 
One 'S' is the owner of the property in question. She was 70 years old 
and living in a math. She executed will in favour of respondent no. 1. The 
c respondent no. I was complete stranger to the family. On the same day, a sale 
deed was also executed by 'S' in favour of advocate PW-7. The will was scribed 
by PW-9, an advocatc's clerk. PW-9 and one 'C' were the attesting witness 
'S' expired in I 983. In 1986, first respondent applied for grant of letters of 
administration in respect of alleged will. Appellants are the heirs and legal 
D representatives of the testatrix. They contested the said application, 
questioning execution of the Will alleging the same to be a forged and a sham 
document Execution of the will was sought to be proved by producing a certified 
copy thereof. A purported xeroxed copy of the said will was also filed. Courts 
below held in favour of respondent no. I. Hence the present appeal. 
E 
Allowing the appeal, the Court 
HELD: 1. P.W. 9 did cot, admittedly know the testatrix from before. He 
had seen her for the first time on the day when the Will was executed and 
because PW-7 had asked him to identify her, he did so. It was stated that the 
F 
Will was scribed by him as per dictation of PW-7, but in the Will, it was 
stated that he himself did it. If he put his signature before the testatrix had 
put her thumb impression on the sale deed and the Will, he does not answer 
the requirement of attesting witness. He was not aware of any other person 
attesting the Will and the sale deed. P.W.9, therefore, failed to prove execution 
or attestation of the Will. [Paras 13 and 14] [861-F, G] 
G 
2.1. There is nothing on record to show that the testatrix understood 
the meaning, purport and contents of the Will. There is nothing on record to 
show that the Will was read over and explained

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