Girja Datt Singh vs Gangotri Datt Singh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 25 January, 1955

Coram: Bhagwati, J.

In this matter, the Supreme Court examined two appeals granted by special leave that originated from distinct proceedings. One proceeding was filed under the Uttar Pradesh Encumbered Estates Act, identified as Estate Enforcement (E. E.) Act Case No. 11 of 1936, and the other was a title suit, recorded as Regular Suit No. 71 of 1938, which was heard in the Court of the Civil Judge at Gonda. Both proceedings concerned a ten-anna share in the property that had been left by the deceased Bhaiya Baleshwar Datt Singh, hereinafter referred to as the deceased. The deceased had died on 15 May 1933, leaving as his nearest collateral heir his brother Bhaiya Girja Datt Singh, who was the original appellant. A more distant relative, Bhaiya Gangotri Datt Singh, hereinafter referred to as Gangotri, claimed entitlement to the estate on the basis of a will that he alleged the deceased had executed and published on 17 March 1928. Following the death, Girja filed twenty-nine separate applications seeking mutation of the revenue records to replace the name of the deceased with his own in respect of the various properties that formed part of the estate. Gangotri opposed each of these mutation applications, relying on the alleged will to assert his own claim. All of the applications and the related disputes were consolidated, and the case concerning the village of Nagwa was designated as the principal matter. On 14 November 1933, three applications were presented to the Revenue Court requesting that the disputes between Girja and Gangotri be referred to arbitration: Application Exhibit 58 filed by Gangotri under Section 203 of the Uttar Pradesh Land Revenue Act; Application Exhibit 57 filed by Girja under the same statutory provision; and a joint application Exhibit 59 filed by both parties, in which they declared that they had appointed Bhaiya Raghuraj Singh and Bhaiya Lot Baksh Singh, the Taluqdars of Majhgawan, as arbitrators, and that they would accept any award rendered by these arbitrators with respect to the property left by the deceased, and that the revenue mutations would be effected in accordance with such award. By an order dated 15 November 1933, the Revenue Court referred the matters to the arbitrators named above. Although Gangotri subsequently attempted to withdraw from the arbitration reference, the Board of Revenue held him bound by the earlier referral and required him to proceed with the arbitration process.

The arbitrators issued their award on 17 January 1934, determining that out of the entire property of Baleshwar Datt Singh, only a ten-anna share of the villages should be allotted to Bhaiya Girja Datt Singh and a six-anna share to Bhaiya Gangotri Datt Singh. They further directed that the waqf property should remain as waqf and that Girja should continue to serve as its mutawalli. The award also stipulated that the parties, their heirs, and their representatives would be bound by the award for successive generations, and that the award would be enforceable both in revenue matters and in civil courts. Gangotri subsequently filed objections to the award, contending that his consent to the reference for arbitration had not been freely given, that the arbitrators had acted beyond the scope of their authority, and that the arbitrators had committed misconduct in the conduct of the proceedings. The Revenue Court, by its judgment dated 18 January 1935, rejected Gangotri’s objections and ordered that the mutations be carried out in accordance with the terms of the arbitrators’ award. An appeal filed by Gangotri against that order and judgment was dismissed on 14 May 1935.

Gangotri claimed that the reference to arbitration had not been made by him with free consent, that the arbitrators had acted beyond the authority granted to them, and that the arbitrators had committed misconduct. The Revenue Court, by its judgment dated 18-1-1935, rejected all of Gangotri’s objections and ordered that the land records be mutated in accordance with the award. Gangotri appealed against both the order and the judgment, but that appeal was dismissed on 14-5-1935.

On 11-4-1936 Girja filed an application under Section 4 of the Uttar Pradesh Encumbered Estates Act, identified as E.E. Act Case No. 11 of 1936, seeking liquidation of his debts. In the written statement filed on 21-5-1936 under Section 8 of the Act, Girja showed that the ten-annas share of the properties left by the deceased was owned by him and that this share should be used to satisfy his liabilities. Subsequently, on 22-5-1937 Gangotri lodged objections under Section 11 of the Act, asserting that the same properties belonged to him under a will dated 17-3-1928, which he claimed had been executed by the deceased in his favour. On 18-5-1937 Gangotri instituted Regular Suit No. 71 of 1938 before the Civil Judge of Gonda, seeking possession of the ten-annas share that Girja held under the terms of the award. Gangotri based his claim on the will and argued that, as the sole legatee, he was entitled to the entire estate. Girja defended the suit on two principal grounds: firstly, that the will (Exhibit A-36) had not been properly executed and attested; and secondly, that the award, which he characterised as a family settlement, was binding on the parties.

The issue identified as Issue No. 6 in E.E. Act Case No. 11 of 1936 concerned whether the Rent Court’s decision on the award was res judicata and whether it precluded any civil suit. This question was tried as a preliminary issue. By his judgment dated 5-5-1938, the Special Judge held that the validity or invalidity of the award was indeed res judicata, but that the award did not bar the institution of a civil suit because the Revenue Court’s decision did not extinguish the jurisdiction of the civil courts. An appeal against this finding was dismissed by the Chief Court of Oudh on 22-7-1942.

Thereafter, both E.E. Act Case No. 11 of 1936 and Regular Suit No. 71 of 1938 were tried together, with the parties’ counsel agreeing that the outcome of the suit should follow the outcome of the E.E. Act case. The Special Judge examined the matters and concluded that the will was duly executed and properly attested, that the reference to arbitration had been made by Gangotri of his own free will and could not be withdrawn, that the arbitrators had not acted fraudulently or with partiality, that the award did not constitute a family settlement, and that, because the award was not registered, it could not be produced as evidence in the civil court. Accordingly, the judge allowed Gangotri’s claim and held that the properties in question were held not

The Court noted that the Civil Judge had decreed Suit Number 71 of 1938 in favour of Gangotri, holding that the properties in dispute did not belong to Girja. Following that finding, Girja filed two separate appeals before the Chief Court of Oudh challenging the two decrees. The Chief Court, by its judgment dated 28 February 1947, dismissed both appeals. Subsequently, Girja applied on 2 April 1947 for leave to appeal to the Privy Council, but the application was refused on 12 August 1947. He then applied to the Federal Court for special leave to appeal the judgment and decree of the Chief Court of Oudh. By orders dated 11 November 1948, the Federal Court granted special leave to appeal in both matters. The Court further recorded that Girja died on 5 November 1949 and that his heirs and legal representatives were substituted in his place and stead on 9 March 1951. The Court identified two principal questions for determination. The first question concerned whether the will dated 17 March 1928 was proved to have been duly executed and attested. The second question related to whether the award published by the arbitrators on 17 January 1934 was binding on the parties. Since a decision on the first question would be determinative of the appeals, the Court declined to call upon the parties to argue the second question. After consideration, the Court concluded that the will dated 17 March 1928 was not proved to have been duly executed and attested, and therefore the appellants were entitled to succeed on that ground.

The Court then set out the factual background relevant to the execution and attestation of the will. The deceased was a resident of Nagwa Khas village in Pargana Mahadeva, Tehsil Tarabganj, District Gonda. Prior to 17 March 1928, he had executed two wills dated 27 August 1904 and 1 December 1915, each of which was executed while his wife was alive. After his wife’s death, a distant relative named Gangotri entered his household in approximately 1923. The deceased intended to execute a will in favour of Gangotri in March 1928, and also intended to execute a deed of waqf dedicating 1.66 acres of land in Tehsil Tarabganj to certain idols installed in a Thakurdwara at Nagwa. To that effect, he travelled to Gonda on or about 15 March 1928 and lodged at the Math of Mahant Gulabgir. He consulted Gur Charan Lal, a pleader and his legal adviser, to draft the will. Gur Charan Lal prepared a rough draft of the will on or about 16 March 1928, and this draft was refined and scribed by Sant Bux, a clerk employed by Gur Charan Lal, at the latter’s residence on the morning of 17 March 1928. It appears that a fair draft of the deed of waqf was also prepared and scribed by one Hasinuddin on the morning

According to Gangotri, the two fair drafts that had been scribed were taken by the deceased to Tarabganj, where the deceased executed them and the attesting witnesses, Uma Dutt Singh and Badri Singh, signed them beneath a Bargad tree in the compound of the registration office at Tarabganj. The same day, after execution and attestation, the deceased presented the documents for registration before the Sub-Registrar at Gonda. The deceased acknowledged having executed and completed both documents, and two persons, Mahadev Pershad and Nageshur, identified him before the Sub-Registrar. Both Mahadev Pershad and Nageshur then placed their signatures below the Sub-Registrar’s endorsement, confirming the registration.

To establish that the will had been properly executed and attested, Gangotri examined the two attesting witnesses, Uma Dutt Singh and Badri Singh, while Girja examined Hasinuddin, the scribe of the deed of waqf. The will, marked as Exhibit A-36, was written in blue ink, and the signatures of the deceased, Uma Dutt Singh and Badri Singh were also recorded in that blue ink. In contrast, the deed of waqf, Exhibit A-23, was written in black ink, and the signatures of the deceased and the same two witnesses were likewise made in black ink.

The testimony of Uma Dutt Singh and Badri Singh asserted that although both documents had been scribed at Gonda, they were not executed or attested there. They explained that Uma Dutt Singh, whom the deceased intended to act as an attesting witness on both documents, was absent from Gonda on 17-3-1928. Consequently, the deceased asked Badri Singh, who was present in Gonda on that day, to accompany him to Tarabganj. Both documents were then executed by the deceased and duly attested by the two witnesses, Uma Dutt Singh and Badri Singh, under the Bargad tree in the registration office compound at Tarabganj.

Uma Dutt Singh further stated that he had been staying in the village of Karimpur for about seven or eight days before 17-3-1928. He received a letter from the deceased addressed to his village of Rampur Karehta while at Karimpur, managed an elephant, and arrived at the Tarabganj registration office at approximately 2 p.m. on 17-3-1928. There he found the deceased, Badri Singh, and six or seven other individuals assembled. According to his evidence, after his arrival the two documents, Exhibit A-23 and Exhibit A-36, were executed by the deceased and subsequently attested by Uma Dutt Singh and Badri Singh, one after the other. The completed and attested documents were then presented by the deceased to the Sub-Registrar between 2 p.m. and 3 p.m. on the same day. Hasinuddin, the scribe of the deed of waqf, gave his testimony on the opposite aspect of the matter.

The deponent, Hasinuddin, testified that he had prepared a fair draft of the deed of waqf, identified as Exhibit A-23, at the residence of Gur Charan Lal in Gonda. He stated that the deceased, together with the two attesting witnesses, Uma Dutt Singh and Badri Singh, were present in Gur Charan Lal’s house at the time the draft was written. According to his testimony, Exhibit A-23 was duly executed by the deceased and subsequently attested by the two witnesses while still in the presence of Hasinuddin. He further explained that he had brought his own ink-pot and pen to the location, that the fair draft was penned by him, and that both the execution and the attestation of Exhibit A-23 were made using the same black ink from his ink-pot. While scribing the draft of the deed of waqf, Hasinuddin observed another individual, Sant Bux, also drafting a document, although he could not identify the nature of that document. He argued that if his version regarding the proper execution and attestation of Exhibit A-23 at Gur Charan Lal’s house were correct, then the two attesting witnesses examined by Gangotri, namely Uma Dutt Singh and Badri Singh, would have been lying when they claimed that both Exhibit A-23 and Exhibit A-36 were executed and attested under the Bargad tree in the registration office compound at Tarabganj. It was also noted that Gur Charan Lal, who was examined by Gangotri, disavowed any connection with Exhibit A-23, but he did admit to preparing and scribing the will identified as Exhibit A-36, and he recounted that the deceased had taken the fair draft of that will to Tarabganj for its execution and finalisation. The trial court gave credence to the statements of Uma Dutt Singh and Badri Singh, observing that despite an extensive cross-examination, nothing was produced that could invalidate the registered will. Regarding the discrepancy between the inks used on Exhibits A-23 and A-36, the trial court observed that pens and ink of the same type as those used on Exhibit A-23 could be obtained at Tarabganj, and therefore it dismissed Hasinuddin’s claim that Exhibit A-23 was executed and attested at Gonda. In contrast, the Chief Court of Oudh highlighted the difference in the inks on the two documents and considered that Hasinuddin’s statement that Exhibit A-23 had been completed, signed and attested in his presence at Gonda might be true. The Chief Court concluded that the attesting witnesses were not truthful in their explanation for why the will, Exhibit A-36, was not signed and attested at Gonda. Nevertheless, the court accepted the witnesses’ testimony to the extent that they had seen the deceased sign Exhibit A-36 and that they themselves had signed in his presence, thereby agreeing with the trial court’s finding that Exhibit A-36 was duly executed and attested.

The Court examined the original documents Ex A-23 and Ex A-36 and accepted the conclusion of the Chief Court of Oudh that the attesting witnesses were not truthful when they offered the reason why the will was not signed and attested at Gonda. Hasinuddin was a petition writer who normally carried his own ink pot and pen; the ink pot contained black ink and he wrote the fair draft of Ex A-23 in that black ink. A careful review of his testimony does not support the criticism advanced by the trial Court, namely that he was a purchasable witness who had been manufactured to tell a false story that Ex A-23 was executed and attested in the house of Gur Charan Lal at Gonda. His evidence appears natural and, despite his poverty, he does not seem eager to aid Girja, as shown by his answer in cross-examination concerning the deceased being “a sensible man.” The Chief Court’s acceptance of Hasinuddin’s evidence establishes that the deed of waqf Ex A-23 was written by him, executed by the deceased and attested by Uma Dutt Singh and Badri Singh in his presence at Gur Charan Lal’s house. If both Uma Dutt Singh and Badri Singh were present in Gonda at the time of the execution of Ex A-23, it is implausible to believe that the will Ex A-36 was not also executed by the deceased and attested by the same witnesses at the same time. The fair draft of the will Ex A-36 was scribed in blue ink, which would have been the ink in Gur Charan Lal’s ink pot, and since the witnesses were present for the execution and attestation of Ex A-23 it follows naturally that after Sant Bux scribed the fair draft of the will, the deceased executed it and the witnesses Uma Dutt Singh and Badri Singh also attested that execution at Gonda. This explains why the attestation of both documents was made with the same ink used to scribe the fair draft of the will by Sant Bux. The account given by Uma Dutt Singh and Badri Singh that both documents were executed and attested under the Bargad tree in the registration-office compound at Tarabganj cannot be believed, because if both had been executed there it would be impossible to understand how the scribing, execution and attestation of each document occurred in different inks. Uma Dutt Singh had admitted in his statement

The Court noted that the witness, when giving evidence before the trial Court, had stated before the Assistant Collector in the mutation case that only one ink pot was present at the Tarabganj registration office when he arrived there, and that he had subsequently admitted the correctness of this statement. None of the attesting witnesses was able to explain why the deed of waqf, referred to as Exhibit A-23, was executed and attested in the same black ink that had been used to scribe the document, and why the will, referred to as Exhibit A-36, was likewise executed and attested in the same blue ink that had been used for its drafting. In the Court’s view, these facts were highly indicative and demonstrated that the deed of waqf, Exhibit A-23, was not only scribed, executed and attested at the residence of Gur Charan Lal in the presence of Hasin Uddin, but that the will, Exhibit A-36, was also scribed and attested at the same residence using the ink employed by Sant Bux for drafting the fair copy of the will. Consequently, the attesting witnesses could not have executed and attested the will, Exhibit A-36, at Gonda.

Paragraph 13 recorded that counsel for Gangotri urged the Court to accept the conclusion of the Chief Court of Oudh, which held that the execution and attestation of the will, Exhibit A-36, had taken place at Gonda, and further argued that the two attesting witnesses, Uma Dutt Singh and Badri Singh, were merely suffering from a lapse of memory when they testified that both documents, Exhibits A-23 and A-36, had been executed and attested under the Bargad tree in the compound of the registration office at Tarabganj. The Court found this contention untenable. The theory of a memory lapse was rejected because the witnesses themselves had provided detailed explanations as to why the documents needed to be taken to Tarabganj for execution and attestation. Badri Singh explained that Uma Dutt Singh was not available at Gonda and that the deceased had specifically desired him to be one of the attesting witnesses. Uma Dutt Singh corroborated this statement, saying that he was indeed absent from Gonda on that day, that he had received a letter addressed to him by the deceased at Rampur Karehta in the village of Karimpur, that he had arranged for an elephant, and that he arrived at the Tarabganj registration office at two o’clock in the afternoon on 17 March 1928. Both witnesses further asserted that the documents, Exhibits A-23 and A-36, were actually executed by the deceased and attested by them beneath the Bargad tree in the registration office’s compound at Tarabganj.

The Court observed that these detailed statements did not support the allegation of a lapse of memory; rather, they suggested that the witnesses were fabricating a narrative intended to lend an appearance of credibility to their testimony. The Court also noted that Gur Charan Lal, for reasons not fully explained, did not wish to be involved in the execution of the will, Exhibit A-36.

In this case the Court observed that the two witnesses, Uma Dutt Singh and Badri Singh, appeared to have been persuaded to state that the execution and attestation of the will identified as Exhibit A-36 occurred at Tarabganj rather than at Gonda. The Court expressed the view that the narrative offered by these witnesses concerning the execution and attestation of Exhibit A-36 under the Bargad tree in the compound of the registration office at Tarabganj is a fabrication. According to the Court’s findings, Exhibit A-36 was actually drafted by Sant Bux at Gonda, executed by the deceased at Gonda, and the signatures of Uma Dutt Singh and Badri Singh were appended in Gonda as attestations. The Court’s conclusion is supported by the fact that the identification of the deceased before the Sub-Registrar at Tarabganj was carried out by Uma Dutt Singh and Badri Singh, who, in their own statements, said they were present at the registration office at Tarabganj, but the identification was actually made by two other individuals, Mahadeo Pershad and Nageshur.

The Court then considered whether the attestation of the deceased’s signature on Exhibit A-36 complied with the requirements of Section 63 of the Indian Succession Act. Section 63 provides that a will must be attested by two or more witnesses, each of whom must have seen the testator sign or affix his mark, or must have seen another person sign the will in the testator’s presence and direction, or must have received a personal acknowledgment of the testator’s signature, and each witness must sign the will in the testator’s presence. To establish proper attestation of Exhibit A-36, the petitioner, Gangotri, would therefore need to prove that Uma Dutt Singh and Badri Singh actually saw the deceased sign the will and that they themselves signed the will while the deceased was present. The Court found that the testimony of Uma Dutt Singh and Badri Singh does not persuade the Court that they witnessed the deceased signing the will nor that they affixed their signatures in the deceased’s presence. The Court noted that these witnesses had shown a disregard for truth and were prepared to assist Gur Charan Lal in relocating the venue of execution and attestation of both Exhibit A-23 and Exhibit A-36 from Gonda to Tarabganj for reasons known only to them. Because their oral testimony cannot be relied upon, the Court concluded that there is no assurance that the witnesses actually saw the deceased execute the will in their presence, nor that they signed the will in the presence of the deceased. Consequently, it remains possible that the deceased’s signature was placed on the will at a different time, without the witnesses’ presence.

In the present case the Court observed that it was possible for the attestations to have been made by Uma Dutt Singh and Badri Singh at a time when the deceased was not present, or even when the deceased was alone and the signatures of the witnesses were affixed without the witnesses having actually seen the deceased sign the instrument. Because the evidence did not show that the will identified as Exhibit A-36 had been properly attested by those two witnesses, the Court found that there was no satisfactory proof that the will had been duly executed and attested. Consequently the Court was unable to hold that Exhibit A-36 was proved to have been validly executed and attested.

When this conclusion became apparent, counsel for the respondent, Gangotri, advanced an alternative argument. He contended that the deceased had admitted both the execution and the completion of Exhibit A-36 and had acknowledged his own signature before the Sub-Registrar at Tarabganj. This acknowledgment, according to the argument, had taken place in the presence of two persons, Mahadeo Pershad and Nageshur, who had themselves signed the endorsement made by the Sub-Registrar. It was submitted that the signatures of Mahadeo Pershad and Nageshur were sufficient to demonstrate proper attestation of the will. The Court noted, however, that this argument would have succeeded only if Mahadeo Pershad and Nageshur had signed at the foot of the registration endorsement in the capacity of attesting witnesses, described as “animo attestandi”. Moreover, neither Mahadeo Pershad nor Nageshur was called as a witness to testify that they had acted as attesting witnesses. The Court emphasized that mere signatures appearing at the foot of the endorsement cannot be presumed to indicate that the signatories were acting as attesting witnesses. Section 68 of the Indian Evidence Act requires that an attesting witness be called to testify regarding the due execution and attestation of a will. Because this statutory requirement was not fulfilled, the Court concluded that the argument raised by the respondent could not succeed.

Accordingly, the Court held that the will dated 17 March 1928 was not proved to have been duly executed and attested. It therefore could not provide a basis of title for Gangotri to claim the ten-annas share in the properties left by the deceased, which were the subject of the two proceedings – the E.E. Act Case No. 11 of 1936 and the Regular Suit No. 71 of 1938 before the Civil Judge, Gonda. The appeals were allowed, the objections filed by Gangotri in the E.E. Act Case were dismissed, and the regular suit was also dismissed. The Court ordered that Gangotri pay the costs incurred by Girja and his heirs and legal representatives, the present appellants, in all the proceedings before this Court as well as in the lower courts.

The costs were also to be paid in the lower courts.