The High Court · 2025

Order

This Civil Revision Petition is filed by the petitioners, who were the respondents in Trust O.P.No .336 of 2009 on the file of the leamed Chief Judge, City Civil Court, Hyderabad, aggrieved by its order datd28.ll.2018 passed in I.A.No.3395 of 2018 in the above O.P.

2. The respondent Smt. Nandamuri Lakshmi Parvathi had hted Trust O.P.No.336 of 2009 under Section 74 of the Indian Trust Act, l92O to appoint her as Managing Trustee of the petitioner No.l - Trust in terms of the supplemental will dated 18.11.1995 executed by Sri late Nandamuri Taraka Rama Rao and to direct the trust members and their followers and henchmen not to interfere with her adrninistration in the schedule premises. She relied upon the supplemental Will dated 18.11.1995, which was marked as Ex.Pl. The said supplemental Will was stated to be exeeuted by late N-T.Rama Rao in the presence of two witnesses J.Venkata Sutbaiah and Y-Tirupathi Rao, as atrestors of the said Witl. She flrled an application vide I.A.No.5347 of 2Ol7 under Order XVI of CPC to issue summons to one Y.Madhav, S/o' Tirupathi Rao by hling an afhdavit stating that she came to know that Y.Tirupathi Rao, 2 Dr.GR& J crp_l98_2019 one of the witnesses passed away and to identiry his signature, requested to issue summons to the son of Tirupathi Rao by name Y.Madhav.

3. The said petition was dismissed by the trial court on 27.12.2017, as the petitioner therein i.e Smt. Nandamuri Lakshmi Parvathi filecl an affidavit stating that they wt:re trying to procure the whereabouts of another attestor J.Venkata Subbaiah Thereafter, she filed the affidavit of Sri y.Madhav as PW.2. The respondents in the Trust O.P i.e. the petitionersr herein filed I.A.No.783 of 2018 to eschew the evidence of pW.2, as the petition filed to surnmon him as a rvitness was already dismissed vide I.A.No.5347 of 2017. The chief affidavit of PW.2 was eschewed as per the orde.rs passed in I.A.No.783 of 2018 dated 20.06.2018. Thereafter, the petitioner in the Trust O.P. i.e. Smt. Nandamuri Lakshmi Parvathi filed the chief affrdavit of pW.3 Sri J.V.Prasad Rao, son of another attestor J.Venkata Subbaiah, wherein he stated in his affidavit that his father passed away 9 years ago and that his father informed him about r.he execurion of the alleged will dated l8.l l. 1995 and that he acted as one of rhe aftestors. The petitioners herein filed I.A.No.3395 of 2018 to eschew thr: affidavit filed in lieu of chief examination of pW.3, contending that the affidavit was filed by a person, who was neither a signatory to the alleged will n,rr the witt was scribed and executed in his presence. The genuineness of the $'ill could only be established in the manner provided under Section 68 of the Ind an Evidence ,{:t, 1872. Secrion 6g of the Indian Evidence a' 3 DT.GRR,J crp_l9E_2019 Act, 1872 provided special procdure for proving a Will' as such, the general procedure of examining a person for identifying the signafure to prove the execution of the Will, could not be invoked.

4. kamed counsel for the petitioner in the Trust o.P. filed counter submitting that both the witnesses of the said Will died, as such the respondent in I.,A,.No.3395 of 2018 intended to examine the son of the first witness in his personal capacity. Section 69 of the Indian Evidence Act" 1872 envisages the procedure when both the witnesses of the tJYill deed died. The respondent therein was at liberty to adduce evidence to Protect her righe. He also further contended that the petition was filed after the Court appointed the Advocate Commissioner to record the cross-examination of the witness and that the petitioner without contesting the case on merits, was filing frivolous petitions.

5. The trial court i.e. the learned Chief Judge, City Civil Court, Hyderabad dismissed the petition observing that: *The Will is to be proved by examining atleast oDe attesting witness' The case of the respondent is that supplemental Will was executed in the preserrce of t!$o at{estors i.e. J.V.Subbaiah and Y.Tirupafti Rao. Admittedly, both of them died. As per Section 69 of the Evidence Ac! in case no att€stor is available, ,my p€rson who is acquainted with the handwriting of the attestor can be examined. As the burden of proving the Will is on tlre responden! now they came up with the affrdavit of PW.3, who was the son of one of the attestors to identity the signature of the father. Previously v*ren they intended to examine the son of Y.Tirupathi Rao, it was represented before ttre Court that another 4 DT.GRR,J crp_198_2019 attestor was alive, as such, the Court felt that it is proper on the part of the petitioners to examine another attestor instead of son of one of the attestors. But presently b,cth the attestors died. Therefore, it is just an<I reas,rnable to allow the responde.nt to examine pW.3, son of late Venkata Subbaiah, who was attestor to the will to be examined before the court. 'fhe petitioners hercin are having ample opportunity to cross-examine the witness. I.herefore, the petition is devoid of merit and is liable to dismissed." 6- Aggrieved by the said order in dismissing the petition filed by them for eschewing the evidence of pW.3, the petitioners in I.A,No.3395 of 201g preferred this revisio n,

7. Heard Sri Ashok Anand Kumar leamed Senior Counsel for the petitioners and Sri V V.Raghavan, learned counsel for the respondent.

8. Leamed Senior crounsel for the petitioners submifted that the court below failed to see that the' attestation of the will had to be established only in the manner provided under: Section 68 of the Indian Evidence Acr, 1g72, as it provided for a specizLl procedure for proving a will and it would override the general procedure of examining a person to identif the signaturesr of a person. section 69 of the Inctian Evidence Act had no application unless a foundation was laid that the attestors were dead or not available. No affidavit was filed by the respondent statirrg that the attestors were not alive. Thr: counter in I'A.No.3395 of 2018 was filed by the counset for the respondent,, but not by the respondent. No deatlL certificate of the aftestors was fired. No surnmons were taken to the attestors to prove thart\e attestors were not available or that they 5 DT.GRR'J crp_l9t_2019 were not alive. As such, no foundation was laid before filing the evidence affidavit of PW.3. The person sought to be examined was neither an attestor nor a scrih or a person capable of proving the Will under Section 68 of the Indian Evidence Act, 1872. The person sought to be examined had not pleaded that the attestation, scribing and execution of the Will was done in his presence. Therefore, he was incapable of proving the execution of the Will. The court below ought to have seen that t.A.No.5347 of 2017 filed to summon Sri Y.Madhav, son of another signatory of the will to identifu the signature of his father, was dismissed on 27.12.2O17. There was neither pleading nor representation that another attestor of the Will was alive in I.A.No.5347 of 2Ol7 filed by the respondent, which was dismissed on 27.12.2017. As such, the reasoning given in the order that the respondent contended in the previous I.A. that they were making efforts to secure the prresence of first witness was incorrect. There was neither assertion nor denial in any of the pleadings eittrcr in I.A.No.5347 of 2017 or in I.A.No.783 of 2018. Therefore, ttre reasoning assigrred by the court below to dismiss the petition was not sustainable and relied upon several judgments of the Hon'ble Apex Court and of the various other High Courts. g. Leamed counsel for the respondent on the other hand contended that an interim stay was granted by this Court on 14-02.2019 and the sa re was extended time to time till 07.12.2022.: But subseqr.rently, the matter was not 5 DT.GRR,J crp_t9E_2019 listed for a long tinLe since then, as such, the stay was not extended. The trial court insisted to proceed with the enquiry and pw.3 was also c ross-examined by the counsel for t[e revision petitioners herein. As such, the r:ause of action would not survive and the cRP would become infructuous iind prayed to dismiss the CRP, l0- However, learned Senior counsel for the revision petitioners vehemently opposed the said contention stating that though the cross-examination of pw.3 was conducted at the insistence of the trial court, the order under challenge would not become rurfructuous and relied upon the judgment of the Hon,ble Apex court in Union of India and others v. Narender singhr rvherein it was held that a writ petition questioning the Tribunal's order on mt:rits does not become infructuous by giving effect to the Tribunal order. By implementing an order, the challenge to the validity of the order is not wiped out and is not rendered redundant Hence, merely because the Tribunal's order of reinstatement, which had been challenged in writ petition beforc: High cour! had been implemented, that did not render the writ petition infiuctuous. I 1. Leamed Senior counsel for the petitioners also relied upon the j udgment of the Hon'ble Ape>l court in union of [ndia and others v. Ram Kumar Thakur2, wherein a.so it was held that merery because the impugned order '(2005) 6 scc 106 '(2009) I scc 122 7 DT.GRR,J crp-l9t-2019 before the High Court was implemented, to avoid possible contempt proceedings, that would not take away the right of the appellants to prefer an appeal and question the correctness of the impugned order. Even in cases where interim relief was not granted in favor of the applicant afld the onder was implemented that does not furnish a ground for not entertaining the appeat to be heard on merits. (See: Nagar Mahapalika v. State of U'P' [2006 (5) SCC 1271. Similar view was also taken in Nagesh Datta Shetti v' State of Karnataka [2005(10) SCC 383].

12. Considering the principle stated by the Hon'ble Apex court in tlre above cases, thowh PW.3 was cross-examine4 it is considered necessary to decide the merit of the order passed by the leamed chief Judge, city civil court in I.A.No.3395 of 2018 dated 28-ll-2018, as to whether the same was in accordance with law or procedure mandated under the law'

13. On merits, leamed counsel for the respondent supported the order of the leamed Chief Judge, City Civil Court, Hyderabad on the ground fhat the evidence of PW.3 was necessary to prove the Will, as both tlre attestors of the Will died and Section 69 of the Indian Evid€nce Act, 1872 would prescribe the procedure for proof of the Witl. Where no attesting witness was found, it would mandate that the Will must be proved by demonstrating {hat the attestation of atleast one attesting witness is in their handwriting. 8 Dr.GR&J crp_198 2019 14- In view of the contentions of both the leamed counsel, ir. is considered necessary to examine the provisions, which provides for proof of Will.

15. Section 63 ol'the Indian Succession Act, 1925 deals with execution of unprivileged Wills. It reads as follows:

63. Execution ,rf unprivileged Wills _ Every testator, not being a soldier employed in an expedition or engaged in achral warfare. or an arrrnan so employed or en61aged, or a mariner at sea, shall execute his Wilt according to the following rules:- (a) The testator shall sip or sba affix his mark to the w r, or ir shall be signed by some other person in his presenc.e and by his direction. @) The signature or mark ofthe testator, or the signature of the person signing for him, shall be so placed that it shalr appear that it was intended rherebv ro give ef;Eect to the u.riting as a Will. (c) The will shall be attested by two or more witnesses, each of wtrom has seen the testator si€I, o. uffi* hi, mark to the will or has seen sonre other person sign the tv\/ill, in the presence and by the direction ofthe testator:. or has received from the testator a pemonal acknowledgment of his signature or mark, or the signature of such other person; and each o[ the u.itnesses shall sign the Wilt in the presence of the testator, but it shall not be necess,ar). that more than one witness be present at the same tirne, and no particular [orm of attestation shall h: nrressary."

16. Section 3 of the Transfer of property Act, lgg2 defines the term "attested" as: "Attested - [n releLtion to an instrument, means and shall be deemed ahvavs to have meant afiesn)d by two or more witnesses each of whom ha-s srcn the -'- 9 DT.GRR,J crp_l98_2019 executant sip. or affrx his mark to the instrunreot, or has seen some other person sip' the instrument in the presence and by the direction of the executant, or has received from the executant a pemonal acknowledgement of his signature or mark, or of the signatu€ of such other person, and each of whom has sigrred the instrument in the presence of the executant; but it shall not be necessary that morc than one of such witnesses shall have been Preseot aI the same time, and no particular form of afiestation shall be necessary'"

17. Section 6E of the Indian Evidenc€ AcL 1872 prescribes the manner in which a compulsory attestable document has to be proved. [t reads thus: '68. Proof of erecution of document required by law to be ettested - Ifa document is required by law to be attested, it shall not be used as evidence until one attesting witress at least has been called for the purpose of proving its executioq if therc be an attesting witness alive, and subject to the process of the Court an d capable of giving evidence: [provided that it shall not be necessary to call an attesting witness in proof of the execution of any documen! not being a Witl, which has been registercd in accordance with the provisions of the indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purporB to have been executed is specifically denied.]" t8. Section 69 of the Indian Evidence Act, 1872 provides manner of proof of a document, where no attesting witness was found. It reads thus: '69. Proof where no attesting witness is found. If no such attesting witness can be found, or if the document purports to have been executed in the united Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person'" 10 Dr.GR&J crp_I98_2019 19- The 3-Judge Bench of the Hon'ble Apex court in M.L.Abdur Jabbar Sahib v. M.venkaLta Sastri and sons and others3 while c,nsidering the definition of the word "attested" under section 3 of the Transfer of properry Act, 1882, noted thar: "8. It is to be noticed that the word "attestedn, the thiog to be definerl,. occurs as part of the detinition itself. To attest is to bear witness to a fact. Briefly put, the essential corrditions of a valid attestation rmder Section 3 are: (1) two or more witnesses. have seen the executa sign the instrument or have received from him a perx,nal acknowledgment of his signature; (2) with a vieu.to attest or to bear witnerrs r,o this fact each of them has sigrred the instrument in the presence of the t:xecutant. It is essential that the witness shoulcl have- put his signature animo altestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. [f a ;rerson puts his signature on the document for sorne other purpose, e.g., to certift that he is a scribe or an identifier or a relgistering officer, he is not rm attesting witness. "9. In every cas,3 the court must be satisfied that the names were written animo attestandi", see Jarman on Wills, gth et. p.137. Evidence is admissible to show whether the witness had the intention to attest. ,,The aftesting witnesses must s.bscribe with the intention that the subscription madt: shourd be complete atr€ sration of the will, and evidence is admissible to show whether such was the intention or no!" sec Theobald on Wilts, l2th ed p. 129. ln Giria Datt v. ,Gangotri [AIR 1955 SC 346 (351)), the Coun hetd that the two persons who ,rad identif,red the testator at the time of the registration olthe will and had appt:nded their signatures at the foot of the endorsemenr by the Sub-Registrar, wore not attesting witnesses as their signatures were not put "animo attestanrlj". In Abinash Chandra Bidvanidhi Bhattacharya v. Dasarath Mato lll-R 56 Cal 59g = AIR 1929 Cal 1231, ir was helct that a ' AIR 1969 Supreme Courl [ 147 LL DT.GRR,J crp_l9E_2019 person who had put his name under the word "scribe" was not an attssting witness as he had put his sigmature only for the purpose of authenticating that trc was a "scribe". In Shiam Sundar Singh v. Jagannath Singb [54 Mad lJ 43 : AIR lg27 PC 2481, the Privy Council held that the legatees who had put their signatures on the wilt in token of their consent to its execution were not attesting witrcsses ad were not disqualified ftom taking as legatees'

20. This High court in Lingala Potha Raju (died) per LRs. and others v. Chagantipati Annapurnamma and othersa after considering the judgments of the Hon'ble Apex court in M.L.AMul Jabbar Sahib v. M.Venkata Sastri ORDER CRP.No.198 of 2019 ALLOWING THE C.R P. 6q%4 \r- €t-{a: