Judgement

I.S. TIWANA, J.:- The following question of law has been referred to this Full Bench for decision :-

"Whether, in no case, a decision under Order 22, Rule 5, Civil Procedure Code, would operate as res judicata between the same parties or their successors-in-interest or their privies in subsequent proceedings even when the contested issue in the earlier proceedings had been decided by the Court on merits after affording fair and due opportunity to the contesting parties to lead evidence and of hearing?"

A few skeletal facts necessary to unfold the basic legal contention only are noticed as under.

2. The present plaintiff-appellants (hereinafter referred to as the plaintiffs), along with their mother, Smt. Amar Kaur, brought a suit on July 1, 1958 for maintenance against their grandfather, Ishar Singh, with the allegation that since their father Milkhi was unheard of for the last more than thirteen years and was presumed to be dead, the defendant Ishar Singh was under a legal obligation to maintain them from the property in his hands. The said suit was decreed on August 30, 1961, by Sub-Judge Ist Class, Garhshankar. Before an appeal could be filed against that decree Ishar Singh, judgment-debtor, died. The present defendants, claiming themselves to be the legal representatives of Ishar Singh deceased on the basis of a will, filed an appeal in this Court against the said decree. As a question with regard to the maintainability of the said appeal by the defendants arose, the matter was referred by this Court to the trial Court for a report on the point as to whether the defendants were the legal representatives of Ishar Singh deceased, judgment-debtor. The said Court, after recording evidence with regard to the genuineness of the will, reported in favour of the defendants. This report was accepted by this Court with the following order :-

"In view of the report of the court below pursuant to my order dated 19th July, 1962, Piara Singh and Sucha Singh, Petitioners are directed to be impleaded as legal representatives of the deceased Ishar Singh and consequently permitted to file the appeal. The appeal has already been filed and appropriate orders have been made regarding its admission etc.

26-7-1963. SD/- A.N. Grover Judge"

As a result of this order, the appeal preferred by the defendants was held to be maintainable though ultimately the same was dismissed by this Court on April 29, 1971 with certain modifications in the decree on account of death of Smt. Amar Kaur during the pendency of the appeal and the plaintiffs - grand-daughters of Ishar Singh - having joined Government service, Subsequently the plaintiffs filed the present suit against the defendants for declaration and possession of the property left by Ishar Singh deceased on the basis of their being the sole heirs to him. A specific challenge to the will, alleged to have been executed by the deceased in favour of the defendants, was also levelled. The pleadings of the parties necessitated the framing of the following issues. :-

1. Whether Ishar Singh deceased had executed a valid will in favour of Piara Singh and Sucha Singh on 28-12-1960?

O.P.D.

2. Whether the will dated 28-12-1960 is the result of undue influence and fraud as alleged? O.P.D.

3. Whether the plaintiffs are estopped from challenging the validity of the will as alleged and the matter is res judicata between them? O.P.D.

The above-noted question of law posed before us, pertains to issue No. 3 only.

3. The learned single Judge, before whom this R.S.A. came up for final hearing, felt that the inflexible and absolute rule laid down by a string of decisions of Lahore High Court and this Court that a decision under Order 22, Rule 5, Civil Procedure Code, would in no case operate as res judicata between the parties or their successors-in-interest in a subsequent suit required reconsideration in view of the newly added explanations 7 and 8 to Section 11 of the Civil Procedure Code and the decision of their Lordships of the Supreme Court in Union Of India v. Nanak Singh., AIR 1968 SC 1370. In the said case, the learned Judges of the Supreme Court, while holding that a decision of the Court on the writ side deciding a particular issue involved therein, would operate as res judicata regarding the said point, raised subsequently in a civil suit observed as follows :-

"Provisions of Section 11, Civil Procedure Code are not exclusive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly should be competent to decide the subsequent suit or that the former proceeding, and the subsequent suit should have the same subject matter. There is no good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution, from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principles of the finality of decisions after full contest, AIR 1965 SC 1153, relied on."

4. After noticing the facts of that case, their Lordships held that the suit was so barred as the judgment in the previous case operated by express decision as res judicata. It is on the basis of these observations that Mr. B.S. Khoji, learned counsel for the defendants, contends that the decisions of the Lahore High Court reported as Chiragh Din v. Dilawar Khan, AIR 1934 Lah 465; Mahomed Khan v. Jan Mohammad, AIR 1939 Lah 580 and Daulat Ram v. Mt. Meero, AIR 1941 Lah 142, and also of this Court in Mangat v. Surja, 1979 Rev LR 129 : (AIR 1979 Punj and Har 194), laying down that a decision under Order 22, Rule 5, Civil Procedure Code, would not operate as res judicata in a subsequent suit where an issue with regard to the succession or heirship of a deceased party in the earlier proceedings, is raised, are no more a good law. On the other hand, Mr. R.S. Bindra, learned counsel for the plaintiffs, forcefully maintains that (i) a decision under Order 22, Rule 5, Civil Procedure Code, always relates to a collateral issue or an issue which incidentally crops up in a litigation when a party to that litigation dies and in the very nature of things such a decision is rendered only with a view to ensuring orderly conduct of the proceedings as a result of a summary enquiry and such a decision can never operate as res judicata in a subsequent suit where the direct question of succession or heirship to the said deceased party arises, and (ii) such a decision being not a decision in a suit, would not operate as res judicata in a subsequent suit in view of the provisions of Section 11 of the Civil Procedure Code. What Mr. Bindra submits is that in the context of suits it is only the provisions of the Sec. 11 of the Civil Procedure Code which can be looked into to find out the applicability of the doctrine of res judicata and in such matters it is not open to invoke the general principles of res judicata. For making this submission he strongly relies on two judgments of the Supreme Court, that is, Satyadhyan Ghosal v. Smt. Deorajin Debi, AIR 1960 SC 941 and I.L. Janakirama Iyer v. P.M Nilkanta Iyer, AIR 1962 SC 633. In Satyadhyan Ghosals case it was observed as under :-

"The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that, once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit, or proceedings, and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. The principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure.; but even where Section 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original Court as well as any Higher Court must in any future litigation proceed on the basis that the previous decision was correct"

. (Emphasis supplied).

In I.L. Janakirama Iyers case, (AIR 1962 SC 633) (supra) their Lordships observed thus :-

"That takes us to the question of res judicata. The argument is that on general grounds of res judicata the dismissal of the suit (O. S. No. 30 of 1943) filed by defendants 1 to 6 should preclude the trial of the present suit. It has been fairly conceded that in terms Sec. 11 of the Code cannot apply because the present suit is filed by the creditors of defendants 1 to 6 in their representative character and is conducted as a representative suit under Order 1, Rule 8, and it cannot be said that defendants 1 to 6 who were plaintiffs in the earlier suit and the creditors who have brought the present suit are the same parties or parties who claim through each other. Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of section 11 and no other. In our opinion, therefore, there is no substance in the ground that the present suit is barred by res judicata."

The further submission of Mr. R.S. Bindra is that to hold otherwise would render Section 11, Civil Procedure Code, nugatory and would introduce anomalies. He submits that if the general principles of res judicata are to be applied to suits independently of Section 11, Civil Procedure Code also, then a decision, if it fell under Section 11 of the Code, would be res judicata in a subsequent suit and even if it did not so fall thereunder, it would equally be res judicata. Leaving aside the plausibility of this argument of Mr. Bindra, we feel bound by the decision of their Lordships of the Supreme Court which pointedly considers this aspect of the question in Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153. It is the ratio of this judgment which has been reiterated in the latter judgment in Nanak Singhs case, (AIR 1968 SC 1370) (supra) on which Mr. Khoji has relied. This is what has been said in paragraph 43 of this judgment (Gulabchand Chhotalal Parikhs) case (supra):-

"43. The general principle of res judicata has been applied to suits even though the decision on the same matter in controversy had been previously given by a competent Court in proceedings which were not suits under the Code of Civil Procedure. The case law on the subject will be discussed later. It is urged that there seems to be no good principle behind applying the general principles of res judicata to suits in circumstances which do not bring the previous decision within the language of Section 11, and that the legislatures restricting the application of the general principles of res judicata to the circumstances mentioned in Section 11 must be deemed to indicate that the general principle of res judicata be not applied to bar a subsequent suit if the earlier decision of the same controversy between the same parties had been arrived at in proceedings other than suits and in which the entire procedure provided for the decision of the dispute in a regular suit might not have bean followed. It appears to us that the reason for the specific provisions of section 11 is not that the legislature intended to bar the application of the general principles of res judicata to suits when the previous decision is arrived at in proceedings other than suits. The legislature was providing in the Code of Civil Procedure for the trial of suits over which the Civil Court was given jurisdiction under the provisions of the Code. The preamble of the Code of 1908 reads:-

Whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; it is hereby enacted as follows:-

The Code was dealing with procedure of the Civil Courts only, and had therefore, not to consider what would be the effect on the trial of suits in view of the provisions of other enactments or of general principles of res judicata or of any other kind. It had to restrict its provision about res judicata to the effect of decisions in a civil suit on a subsequent civil suit and therefore enacted Section 11 in the form in which we find it. It made one of the conditions for the application of a previous decision to operate as res judicata to be that the previous decision is made not only by a Court competent to make it but by a Court which may be competent to try the subsequent suit. This condition must have been considered necessary in view of the observations of the Privy Council in Misir Raghobardials case, (1882) 9 Ind App 197 (PC) and on account of the hierarchy of Courts under the various Acts constituting Courts of civil judicature and it could have been felt that a decision by a Court which is not competent to decide the subsequent suit be not treated of a binding nature. Such an exceptional procedure seems to have been provided as a matter of precaution as the Court not competent to try the subsequent suit must necessarily be a Court of inferior jurisdiction and therefore more liable to go wrong. Whatever the reason may be, the provisions of Sec. 11 will govern a previous decision in a suit barring a subsequent suit with respect to the same matter in controversy and general principle of res judicata in such particular circumstances will neither be available to bar a subsequent suit nor will be needed. It is in such context that the remarks of this Court in Janakirama Iyers case, 1962 Supp (1) SCR 206 : (AIR 1962 SC 633) at p. (224 of SCR) : (at p. 641 of AIR) are to be considered. In that case, the decision in a previous suit could not operate as res judicata in accordance with the provisions of Section 11 of the Code, because, the parties in the two suits could not be said to be the same parties or parties who claimed through one another. It was then said:

"Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata we are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of section 11 and no other"

.

The observations are to be read in the context in which they are made, the context being that

"the question of res judicata was being considered in connection with the decision in a previous suit and the parties in the two suits being not the same. In fact, general principles of res judicata also require that the earlier decision be between the same parties. A decision not inter partes cannot, even on general principles of res judicata, operate as res judicata in a subsequent suit"

.

In view of this authoritative pronouncement we feel no scope is left to examine the second argument of Mr. Bindra noticed above. Even in the earlier judgment of the Supreme Court in Satyadhyan Ghosals case, (AIR 1960 SC 941) (supra) relied upon by him, it has been stated in categorical terms that in matters of suits also where Section 11, Civil Procedure Code does not apply, the principles of res judicata have been applied by the Courts for the purpose of achieving finality in litigation. Thus we do not find any substance in this submission of Mr. Bindra. At the same time, we find the references made by Mr. Khoji to Explanations VII and VIII to Sec.11, Civil Procedure Code, in support of his contention, are totally irrelevant. These Explanations have been newly inserted in the section by the Code of Civil Procedure (Amendment) Act, 1976. As the old section did not directly apply to the orders in execution proceedings and the principles of res judicata were held applicable to them; the Explanation VII now makes this section directly applicable to such cases. Similarly prior to the amendment brought about in this section, an issue decided by a competent Court of limited jurisdiction in a former suit was not res judicata in respect of the same issue raised in a subsequent suit unless the Court deciding the former suit was competent to entertain the subsequent suit itself; the present Explanation VIII now renders such decisions res judicata. The Explanations have nothing to do with the point in issue.

5. So far as the first argument of Mr. Bindra, noticed above is concerned, we find that in addition to the judgments of the Lahore High Court and of this Court, referred to in the earlier part of this judgment, he is supported by a string of judgments of other High Courts as well wherein it has repeatedly been held on varied reasons, that, a decision under Order 22, Rule 5, Civil Procedure Code, would not operate as res judicata in a subsequent suit between the same parties or persons claiming through them wherein the question of succession or heirship to the deceased party in the earlier proceedings is directly raised. Some of these reasons are as follows;-

(i) Such a decision is not on an issue arising in the suit itself, but is really a matter collateral to the suit and has to be decided before the suit itself can be proceeded with. The decision does not lead to the determination of any issue in the suit.

(ii) The legal representative is appointed for orderly conduct of the suit only. Such a decision could not take away, for all times to come, the rights of a rightful heir of the deceased in all matters.

(iii) The decision is the result of a summary enquiry against which no appeal has been provided for.

(iv) The concepts of legal representative and heirship of a deceased party are entirely different. In order to constitute one as a legal representative, it is unnecessary that he should have a beneficial interest in the estate. The executors and administrators are legal representatives though they may have no beneficial interest. Trespasser into the property of the deceased claiming title in himself independently of the deceased will not be a legal representative. On the other hand the heirs on whom beneficial interest devolved under the law whether statute or other governing the parties, will be legal representatives.

6. The decisions on which Mr. Bindra has placed firm reliance and which uphold the above proposition of his, are in their chronological order, as follows:-

1. Chiragh Din v. Dilawar Khan, AIR 1934 Lah 465.

2. Antu Rai v. Ram Kinkar Rai, AIR 1936 All 412.

3. Zalim v. Tirlochan Prasad Singh, AIR 1937 Oudh 220 (FB).

4. Mohamed Khan v. Jan Mohammad, AIR 1939 Lah 580.

5. Daulat Ram v. Mt. Meero, AIR 1941 Lah 142.

6. Kuwarlalsingh Indrarajsingh v. Smt. Kuwarani Uma Devi, AIR 1946 Nag 424.

7. Bhudeo Pandey v. Gupteshwar Missir. AIR 1951 Pat 537.

8. Chacko Pyli v. Iype Varghese, AIR 1956 Trav Co 147 (FB).

9. Ram Kalap v. Banshi Dhar, AIR 1958 All 573.

10. Dukh Haran Tewary v. Dulhin Bihasa Kuer, AIR 1963 Pat 390.

11. Koneridoss v. N. Subbiah Naidu, AIR 1975 Mad 124.

12. Krishnakumar v. N. Goverdhana Naidu, AIR 1975 Mad 174.

13. Suraj Mani v. Kishori Lal, AIR 1976 Him Pra 74.

14. Mangat v. Surja, 1979 Rev LR 129:(AIR 1979 Punj and Har 194).

As against this, Mr. Khoji, counsel for the plaintiffs(?) conceded his inability to show us any judgment of any High Court in India except two, that is, Raj Bahadur v. Narayan Prasad, AIR 1926 All 439, Jai Narain v. Ram Deo, AIR 1933 Oudh 207, which may have taken a contrary view. These above noted two judgments referred to by Mr. Khoji have even been specifically overruled by the larger Benches of those very High Courts. Raj Bahadurs case (supra) was dissented from in Antu Rais case (supra) and Ram Kalaps case (supra). These latter judgments, while considering the earlier judgment, that is, Rai Bahadurs case (supra), have said that, though the facts in that case were very different from the facts in these cases, yet if it was intended to lay down in the case of Raj Bahadur (AIR 1926 All 439), that a decision in the summary enquiry under Order 22, Rule 5, Code of Civil Procedure, for ever barred anyone again claiming property as the heir of the deceased party in the suit, then we respectfully dissent from it. Similarly the other judgment relied upon by Mr. Khoji, that is, Jai Narains case (supra) was later overruled by a Full Bench of the said Court in Zalims case, (AIR 1937 Oudh 220) (supra). The question of law posed before the Full Bench was : does the determination of the question whether a certain person is or is not the legal representative of a deceased party in a proceeding under Order 22, Rule 5, Civil Procedure Code, operate as res judicata so as to preclude the same question from being reagitated in a separate suit? Does the ruling reported in Jai Narain v. Ram Deo, AIR 1933 Oudh 207, lay down the correct law. While answering this question, this is what was held by the Full Bench :-

"After a careful consideration of the case law on the subject and the trend of authorities in the various High Courts, we are clearly of the opinion that the answer to the question referred to the Full Bench should be in the negative and we hold that the determination of the question whether a certain person is or is not legal representative of a deceased party in a proceeding under Order 22, Rule 5, Civil Procedure Code, does not operate as res judicata so as to preclude the same question from being reagitated in a separate suit and we decide that the ruling reported in 8 Lucknow 477 does not lay down the correct law on the subject"

.

7. In view of the above referred to catena of authorities by Mr. Bindra and the inability of Mr. Khoji to show any judgment to the contrary, we find that the above noted first argument of Mr. Bindra is well-merited.

8. At least one of the reasons that the appointment of a legal representative is only for the purposes of that suit alone-noted by us above, has met the approval of the Supreme Court in Daya Ram v. Shyam Sundari, AIR 1965 SC 1049. In that case, while examining and interpreting the provisions of Order 22, Rule 4, Civil Procedure Code, in the context of the question involved, that is, when this provision speaks of legal representatives, is it the intention of the Legislature, that unless each and every one of the legal representatives of the deceased defendants, where these are several, is brought on record there is no proper constitution of the suit or appeal, with the result that the suit or appeal would abate, the Court on the basis of almost universal consensus of opinion of all the High Courts in India, while holding that the impleaded legal representative sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record, approved the following enunciation of law in an earlier decision of the Madras High Court in Kadir Mohideen v. Muthukrishna Ayyar, (1903) ILR 26 Mad 230 :-

"In our opinion a person whom the plaintiff alleges to be legal representative of the deceased defendant and whose name the Court enters on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate..... If this were not the law, it would, in no few cases, be practically impossible to secure a complete representation of a party dying pending a suit and it would be specially so in the case of a Muhammadan Party and there can be no hardship in a provision of law by which a party dying during the pendency of a suit, is fully represented for the purpose of the suit, but only for that purpose, by a person whose name is entered on the record in place of the deceased party under Sections 365, 367 and 368 of the Civil Procedure Code, though such person may be only one of several legal representatives or may not be the true legal representative.

This, in our opinion, correctly represents the law." (Emphasis provided).

This principle of law was again reiterated and approved by the Supreme Court in a later judgment, that is, Harihar Prasad Singh v. Balmiki Prasad Singh, AIR 1975 SC 733, at p. 746, paragraph 33.

9. We are, therefore, of the opinion that in essence a decision under Order 22, Rule 5, Civil Procedure Code, is only directed to answers an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representatives of the deceased party get the question of succession settled through a different suit and such a decision does not put an end to the litigation in that regard. It also does not determine any of the issues in controversy in the suit. Besides this it is obvious that such a proceeding is of a very summary nature against the result of which no appeal is provided for. The grant of an opportunity to lead some sort of evidence in support of the claim of being a legal representative of the deceased party would not in any manner change the nature of the proceedings. In the instant case the brevity of the order (reproduced above) with which the report submitted by the trial Court after enquiry into the matter was accepted, is a clear pointer to the fact that the proceedings resorted to were treated to be of a very summary nature. It is thus manifest that the Civil Procedure Code proceeds upon the view of not imparting any finality to the determination of the question of succession or heirship of the deceased party.

10. In view of the above discussion we are clearly of the opinion that the answer to the above referred to question stated in the opening part of the judgment has to be in the affirmative and we accordingly hold that in no case a decision under Order 22, Rule 5, Civil Procedure Code, would operate as res judicata between the same parties or their successors in interest or their privies, in a subsequent proceeding, even when the said parties had been provided an opportunity to contest the issue and lead the evidence thereon. With this answer to the question posed, we send back the case to the learned single Judge for decision on merits.

S. S. SANDHAWALIA, C. J. :- I agree.

G. C. MITTAL, J.:- I too agree.

JUDGMENT (DATED 25-8-1980)

11-13. D. S. TEWATIA, J.:- This plaintiff-appellants, hereinafter referred to as the plaintiffs, in their suit had sought declaration that they were the heirs of Ishar Singh deceased being his granddaughters and were thus entitled to inherit his entire estate on the strength of the said title. They also sought possession of such of his estate as detailed in the plaint which was in the possession of the defendant-respondents, hereinafter referred to as the defendants-real nephews of Ishar Singh deceased. The defendants contested the suit and staked their claim to the entire property left behind by Ishar Singh deceased on the strength of a registered will Exhibit D.2. The plaintiffs had assailed the validity of the said will on the ground that the same had been procured by the defendants by exercising undue influence and practising fraud on the testator. The pleadings led to the framing of the following three issues:-

"(1) Whether Ishar Singh deceased had executed a valid will in favour of Piara Singh and Sucha Singh on 28-12-1960?

(2) Whether the will dated 28-12-1960, is the result of undue influence and fraud as alleged?

(3) Whether the plaintiffs are estopped from challenging the validity of the will as alleged and the matter is res judicata between them"?

Both the Courts below concurrently decided Issues Nos. 1 and 2 in favour of the defendants and against the plaintiffs. However, issue No. 3 was concurrently decided against the defendants.

14. When the case came up for hearing at an earlier stage, following question was referred for the decision of a larger Bench :

"Whether, in no case, a decision under Order 22, Rule 5, Civil Procedure Code, would operated as res judicata between the same parties or their successors-in-interest or their privies in subsequent proceedings even when the contested issue in the earlier proceedings had been decided by the Court on merits after affording fair and due opportunity to the contesting parties to lead evidence and of hearing?"

The Full Bench of this Court, vide its judgment dated 22-4-1980, returned the finding that in no case a decision under Order 22, Rule 5, Civil Procedure Code, would operate as res judicata between the same parties or their successors in interest or their privies in a subsequent proceeding even when the said parties had been provided an opportunity to contest the issue and lead the evidence thereon, with this enunciation of law on the point by the Full Bench, issue No. 3 stands conclusively concluded against the defendant-respondents. The correctness of the concurrent findings of the Courts below, therefore, under Issues Nos. 1 and 2 alone calls for consideration.

15. Mr. R.S. Bindra, learned counsel for the plaintiffs, canvassed, in the first instance, that the findings of the Courts below regarding the validity of the will are vitiated for the reasons that the Courts below had taken into consideration evidence that was inadmissible in law.

16. The evidence which, according to Mr. Bindra, ought not to have been looked at and taken into consideration by the Courts below comprised of the statements of Jagdish Ram (Exhibit D.11) the scribe of the said will Exhibit D.2; Amar Singh (Exhibit D.12), the attesting witness of the will: Amar Kaur (Exhibit D. 6), mother of the plaintiffs; and Ishar Singh (Exhibit D.5), the testator of the Will Exhibit D-2. The first three documents are the certified copies of the statements made in proceedings under Order 22, Rule 5, Civil Procedure Code, in the wake of death of Ishar Singh, who was defendant to a suit for maintenance filed by the present plaintiff-appellants and their mother, Smt. Amar Kaur. On his death, the defendant-respondents herein, had applied for being impleaded as his legal representatives on the strength of the will Exhibit D.2 said to have been executed by Ishar Singh in their favour. Exhibit D.5 is the copy of the statement of Ishar Singh, made in the proceedings relating to the suit for maintenance filed by Smt. Amar Kaur and her two daughters, appellants herein. According to Mr. Bindra, this statement is inadmissible in law in that, the same did not satisfy the requirement of the first proviso to Section 33 of the Evidence Act.

17. Mr. Bindra, learned counsel for the plaintiffs, has also argued that the will Exhibit D. 2 could not have been received in evidence and taken into consideration, as the defendants have not satisfied the requirement of Section 68 of the Evidence Act in that no attesting witness had been called to prove the contents of the same - out of the two attesting witnesses, Amar Singh had died and other one, that is, Hazara Singh was examined by the plaintiffs as their witness who stated that no such will had been executed and attested by him.

18. Before embarking upon the consideration of the contentions advanced by Mr. Bindra, it is necessary that the facts having important bearing thereon are recapitulated. The plaintiffs and their mother Amar Kaur approached the civil Court for seeking maintenance from Ishar Singh testator, grandfather of the plaintiffs. Their suit was decreed on 2-3-1960. Ishar Singh got the said decree set aside from the High Court which remanded the case back for retrial. When the suit was thus pending retrial Ishar Singh on 28-12-1960 executed the disputed will in favour of defendants Sucha Singh and Piara Singh, his real nephews. After this, Ishar Singh as his own witness made a statement on oath, which is Exhibit D. 5, wherein beside disputing the claim of Amar Kaur and her two daughters, appellants herein, to maintenance, he also stated that some five months before he had executed a will regarding all his property in favour of Sucha Singh and Piara Singh. The suit for maintenance was again decreed by the trial Court on 29-3-1961. Ishar Singh again challenged the said decree in the High Court (R.F.A. No. 12 of 1962). When the appeal was pending in the High Court, Ishar Singh died. Sucha Singh and Piara Singh, on the strength of will dated 28-12-1960, applied for being impleaded as legal representatives of Ishar Singh. The present appellants and their mother Amar Kaur disputed the will and their claim to be impleaded as legal representatives. The High Court sought a report from the trial Court.

19. Mr. H.C. Gupta, Subordinate Judge, First Class, Garh Shankar, under the direction of the High Court, recorded the statements of the witnesses adduced by both the sides. On behalf of Sucha Singh and Piara Singh, defendants, Jagdish Ram (the scribe of the will) and Amar Singh (one of the attesting witnesses) gave their evidence. Hazara Singh, the other attesting witness of the alleged will, was also called to prove the will by Sucha Singh and Piara Singh, but he was given up as won over and, thereafter, Hazara Singh appeared as a witness against them.

20. Mr. H.C. Gupta, Subordinate Judge, submitted his report dated 18-41963 to the effect that the will was a genuine will. This report was accepted by Grover, J. (as he then was) and impleaded Sucha Singh and Piara Singh as legal representatives of Ishar Singh in the appeal in the High Court.

21. Sucha Singh and Piara Singh, defendants, have placed on the record a certified copy of the report of the Subordinate Judge, Exhibit D.7; of the order of the High Court, Exhibit D. 8, of statements of Amar Singh Exhibit D.12, of Jagdish Ram Exhibit D.11; of Ishar Singh Exhibit D.5; and of Smt. Amar Kaur Exhibit D.6.

22. Dealing first with the submission of Mr. Bindra that there has not been compliance of the provisions of Sec. 68 of the Evidence Act, which is in the following terms :

"68. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence :

* * * * * * *".

and thus disputed will cannot be read into evidence; it may be observed that the stand taken by Mr. Bindra in this regard is that since out of the two attesting witnesses, Hazara Singh was alive, during the pendency of the present suit, he having not been called to prove the will and the other attesting witness namely Amar Singh having died, so there has been non-compliance with the provisions of Section 68.

23. Mr. B.S. Khoji counsel for the respondents, has, on the other hand, contended that there is present on the record statement of Amar Singh, the other attesting witness. Since under Section 33 of the Evidence Act, that statement is admissible, so the provisions of Sec. 68 stand complied with.

24. Mr. Bindra at this shot back urging that the evidence of Amar Singh or any other witness falls under the category of other evidence envisaged by Section 71 which is in the following terms :

"71. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."

and this other evidence can be taken into consideration only if first there has been compliance with the provisions of Section 68 of the Evidence Act, in that where an attesting witness was alive, he had been called to prove the execution of the document. Mr. Bindra also urged that, in fact, the statement of Amar Singh Exhibit D.12 is not even admissible in evidence under Section 33, as the previous proceedings, in which the said statement was given, were neither between the same parties, as are the present proceedings, nor between the present parties and their representatives.

25. I am afraid there is no merit in the contention advanced by Mr. Bindra. Let us examine first as to whether the statement of Amar Singh is admissible in law under Section 33. Section 33 is in the following terms :

"33. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable :

Provided-

that the proceeding was between the same parties or their representatives in interest :

that the adverse party in the first proceeding had the right and opportunity to cross-examine :

that the questions in issue were substantially the same in the first as in the second proceeding.

Explanation.- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section."

Mr. Bindra maintained that the proceedings in which the statement was given by Amar Singh were between the appellants and their mother on the one hand and Ishar Singh on the other and that Ishar Singh could not be treated as representative of the defendants in the present proceedings, in terms of the expression representative has been interpreted and understood by their Lordships of the Privy Council in Krishnayya Surya Rao v. Venkata Kumara Mahapathi Surya Rao, Rajah of Pittapur, AIR 1933 PC 202, Mr. Bindra drew attention to the following passage from the opinion of Lord Russel, who spoke for the Bench:

"The person who is called by proviso (1) a representative in interest or another is a person who was a party to the first proceeding. Whatever may have been the intention of those who framed the section, the first proviso exactly inverts the requirements of the English law, which requires that the parties to the second proceedings, should legally represent the parties to the first proceeding, or be their privies in estate. The first proviso requires that the party to the first proceeding should have represented in interest the party to the second proceeding in relation to the question in issue in the first proceeding to which the facts which the evidence states were relevant. ..............

There is no dispute with the enunciation of their Lordships of the expression representative. This enunciation would be relevant when considering the admissibility of the statements of Ishar Singh and Smt. Amar Kaur, for so far as the statements of Amar Singh and Jagdish Ram (the scribe of the will) are concerned, in my opinion the earlier proceedings and the present proceedings are to be treated as between the same parties. The earlier proceedings, in which Amar Singh and Jagdish Ram had made their statements were the proceedings ensued under Order 22, Rule 5, Civil Procedure Code, to which the plaintiffs, as also the defendants, were directly the parties against each other, and in those proceedings the issue in dispute between the parties was substantially the same as in the present proceedings, that is, the genuineness and validity of the will. The defendants had staked their right to be impleaded as the legal representatives of Ishar Singh on the strength of the will executed in their favour by Ishar Singh. The validity and genuineness of that will was disputed by the plaintiffs and their mother, whereupon, as already observed, the evidence was received by the Court of both the parties through the Subordinate Judge First Class and a decision was taken in regard to the status of the defendants in those proceedings. Hence, the statement of Amar Singh and for that matter of Jagdish Ram (the scribe of the will) satisfied the requirement of Section 33 and all its provisos, including the first proviso.

26. Now the next question that falls for consideration is as to whether the presence of the testimony of Amar Singh would satisfy the requirement of Section 68 in that his testimony can be treated as being of a witness called to prove the will.

27. An almost identical situation arose before the Kings Bench in Wright v. Doe D. Tatham, (1834) 1 A and E 3, 226. Tindal, Ch. J., who delivered the unanimous opinion of the Bench, reversed the opinion of the learned Judge which was under challenge before the Bench, who had ruled that the will and codicil could not be read in evidence until the surviving attesting witness to such will and codicil, who was proved to be within the jurisdiction of the Court, was called and examined as to the execution of the will and that the necessity of calling such surviving witness was not dispensed with by the producing and reading in evidence the examination and cross-examination of another of the attesting witnesses to the will and codicil, since deceased, taken upon a former trial at law, upon an issue between the same parties, and upon the same question now in controversy. The Bench, overruling the said opinion of the learned Judge, unanimously ruled that it was of the opinion that the will and codicil, after the producing of the evidence above stated were admissible and ought to have been received in evidence without further proof. For reaching the above conclusion the learned Chief Justice reasoned that the evidence given by the deceased witness in the earlier proceedings was given under the obligations of an oath, for which he was equally liable to the penalties of perjury if he had wilfully foresworn himself. The character and degree of evidence of such a witness and for the purpose for which it could be produced later on, it seemed to the Bench that such evidence was direct and immediate evidence in the cause and was producible in evidence in the cause, for the same purpose and to the same extent as if the witness himself had been alive and sworn and had given the same evidence in the witness-box in the present cause, for unless the evidence was carried to this extent, it was impossible to define any line or limit, to which it should be held to extend Repelling the argument, that in the presence of the better evidence of the living attesting witness that the party to a case is required by law, to adduce the best evidence and since in this case best evidence was that of the surviving attesting witness, so evidence of the deceased attesting witness given in an earlier proceeding between the parties should not be taken into consideration advanced on behalf of the other side, the Chief Justice observed that-

"But we think this argument assumes the very point in dispute. If the evidence which had been offered of the execution of the will, had consisted simply in proving the hand-writing of Bleasdale, one of the attesting witnesses, which would have been the legitimate mode of proving the attestation by him, after his death, it might indeed have been objected with some ground of reason, that such evidence could not be the best, whilst another of the attesting witnesses was still alive, and within the jurisdiction of the Court. For, in that case, the proof of the handwriting only would have done no more than raise the presumption, that he witnessed all that the law requires for the due execution of a will; whereas the surviving witness would have been able to give direct proof, whether all the requisites of the statute had been observed or not. Such direct testimony, therefore, might fairly be considered as evidence of a better and higher nature than mere presumption arising from the proof of the witnesss handwriting Stabit presumption, donee probetur in contrarium. The effect, however, of Bleasdales examination is not merely to raise a presumption; it is evidence as direct to the point in issue, and as precise in its nature and quality, as that of Proctor when called in person: it is direct evidence of the complete execution of the will, by the statement upon oath of the observance of every requisite made necessary by the Statute of Frauds. If Proctor had been examined in the present action by the plaintiff below, there can be no doubt, but the examination of Bleasdale on the last trial might have been put in, to contradict him. But on what principle could such contradiction have been admissible, unless the evidence obtained by means of the examination was of as high a character and degree as that of the viva voce examination of the surviving witness? If the parol examination of Proctor was the better evidence, as contended for, how could it be opposed by the inferior evidence of Bleasdales examination?..............."

28. Their Lordships countering yet another argument that to allow the testimony of attesting witness, who had died, and dispensing with the necessity of calling the surviving attesting witness was to destroy the security intended to be given by the Statute of Frauds, observed that the Statute of Frauds did not look primarily to the mode of proving the will when contested, but to the security of the testator at the time of the execution of the will; the statute intending that three witnesses should be in the nature of guards or securities, to protect him in the execution of his will against force, or fraud, or undue influence. The proof of the will by the three witnesses, supposing it should afterwards come in contest, is only an incidental and secondary benefit derived from that mode of attestation, Indeed the principle of this objection, if carried to its full extent, would require the will to be proved in every case by the three witnesses. It is well settled, however, that, in an action at law, it is sufficient to call one only of the subscribing witnesses, if he can speak to the observance of all that is required by the statute; and the objection itself is obviously open to the same answer which has been given to the first, viz., that the evidence resulting from the written examination of the deceased witness, in the former suit between the same parties is of as high a nature, and as direct and immediate, as the viva voce examination of one of the witnesses remaining alive, and actually examined in the cause and finally held that we think that, after the proof given in this case of the examination of Bleasdale and his subsequent death, the will and codicil were receivable in evidence without further proof.

29. I cannot but persuade myself to wholeheartedly subscribe to the view that, the learned Chief Justice had enunciated interpreting the requirement of law substantially in pari materia with the provisions of Section 68 of the Evidence Act. Accordingly, I hold that the requirement of Section 68 stands satisfied in this case.

30. As already observed, the surviving attesting witness Hazara Singh had appeared in the earlier proceedings under Order 22, Rule 5, Civil Procedure Code, as witness for the plaintiffs and had given evidence against the defendants. He again appeared as witness in the present case for the plaintiffs and against the defendants.

31. The author of Phipson on Evidence. Tenth Edition, at page 1641, in para 1640, has commented that an attesting witness of a solemn document is treated almost as the witness of the Court and if he gives evidence against the plaintiff, the plaintiff is -entitled to cross-examine him. I entirely agree with the comments. What the Court requires is the presence of a witness which the document allegedly holds out to be the attesting witness of the said document. Such a witness can deny the execution of the document or he can depose that the document has been duly executed and he had attested the same. The parties would be entitled to test the veracity of his evidence by cross-examining him and thus giving the Court a chance to assess his testimony and consequently to determine as to what weight and value to attach to the document.

32. Mr. Bindra was not able to lay his hand on my reported case of any High Court or the Supreme Court or the Privy Council wherein an attesting witness of a document had died after giving evidence in previous proceeding and in subsequent proceeding between the same parties or their representatives and when his evidence was brought on the record without calling the surviving attesting witness to prove the document, then it may have been held that it was nevertheless necessary for the party, which was propounding the document, to call the surviving witness even if he was hostile in order to comply with the requirement of Section 68.

33. Now coming to the genuineness and voluntary character of the will, it may be observed that the two Courts below had the ratio of H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, for guidance before them while assessing the evidence in regard to the genuineness of the will. It had been contended on behalf of the plaintiffs before the Courts below, and has been reiterated in this Court, that the document was surrounded by suspicious circumstances inasmuch as the testator had overlooked the claims of his sons wife and his two grand-daughters. The Court rightly did not find any merit in this argument. Here was a testator who when alive was fighting tooth and nail the claim for maintenance of the plaintiffs and their mother. When the Court decreed the suit, he again went up in appeal, When the trial Court after remand again decreed the suit, he again went up in appeal to the High Court. That would show that he never felt that the welfare of the girls and their mother was any of his concern. Amar Kaur, when appearing as a witness in proceedings under O.22, Rule 5, Civil Procedure Code, which statement has been produced by the defendants in the present proceedings as Exhibit D.6, stated that for the last about ten years, she had not cooked meals for Ishar Singh (the testator). Ishar Singh when still alive appearing as his own witness in those proceedings after the same had been remanded back by the High Court to the trial Court and after he has executed the will in favour of the respondents, dispelled any doubt about the voluntary nature of the will, for he stated on oath that he had willed away his entire property by a registered will some months earlier in favour of Sucha Singh and Piara Singh. There is also the testimony of the scribe, Jagdish Ram, who gave his statement in proceedings under Order 22, Rule 5, Civil Procedure Code. He has since died and his statement has been produced in the present proceedings as Exhibit D.11. He had stated then that he had scribed the will which had been thumb-marked by Ishar Singh after the same had been read over to him and had been attested by Hazara Singh and Amar Singh.

34. Now the question that arises for consideration is as to whether the statements of Amar Kaur and Ishar Singh are admissible in evidence, for it has been contended that these do not satisfy the requirement of Section 33 of the Evidence Act. In my opinion, there is no merit in the objection raised to the admissibility in evidence of these statements. So far as the statement of Amar Kaur is concerned, it was given in proceedings under Order 22, Rule 5, Civil Procedure Code, and stands on the same footing as that of Amar Singh and is, therefore, clearly admissible in law. As regards the statement of Ishar Singh, it may be observed that it was given in the maintenance proceedings between the plaintiffs and the other and Ishar Singh at a time when Ishar Singh had already made a will in favour of Sucha Singh and Piara Singh. In case the suit of the plaintiff had been decreed, then their right to maintenance was to constitute a first charge on the property of Ishar Singh - and Piara Singh - which charge was to remain saddled on that property even after his death. In opposing the right of maintenance of the plaintiffs in that suit and thus to save the property from a charge of maintenance, Ishar Singh was protecting the interest of Sucha Singh and Piara Singh and was thus acting in a representative capacity so far as Sucha Singh and Piara Singh were concerned. The position of Ishar Singh was almost like that of a reversioner fighting for the interest of such of reversioners as were not a party to the suit or who when the time arrived were to become claimants to the property which the reversioners, who were a party to the suit, were trying to save for them. In view of the above, I am of the view that the statement of Ishar Singh is also admissible in evidence and the evidence so furnished by his statement has been rightly taken into consideration by the Courts below.

35. Hazara Singh, the other attesting witness of the disputed will, who has been examined by the plaintiffs, virtually sticks to his earlier statement, which he made in the earlier proceedings under Order 22, Rule 5, Civil Procedure Code, between the same parties. He has stated that he had never attested the disputed will; that he had been taken to attest a will executed by mother-in-law of Sucha Singh, Smt. Jasso, in favour of his wife, Smt. Hamam Kaur, on the very day on which the disputed will was said to have been executed by Ishar Singh; and that his signatures were obtained on the disputed will under the impression that that was the second copy of the will made by Sucha Singhs mother-in-law. His statement might have merited some consideration if we did not have before us the statement of Ishar Singh and the testimony of the Sub-Registrar. The Sub-Registrar stated that the will made by Ishar Singh had been read out to him and after reading the same, he had put his signatures thereto; that he had been identified by Hazara Singh who was personally known to him; and that Hazara Singh and Amar Singh had admitted that they had attested the will and had also put their signatures at the time of registration in the presence of Ishar Singh who had signed the will in their presence. Ishar Singh in his statement has clearly stated on oath that he willed away his entire property to Sucha Singh and Piara Singh. The statement of Ishar Singh should be enough to dispel any doubt whatsoever that could be entertained even farfetchedly either as a result of the statement of Hazara Singh about the genuineness of the will or on account of the fact that the granddaughters and their mother had been excluded altogether from the will. As has already been observed, the later fact could not have weighed with him at all while executing the will, for he was fighting tooth and nail when alive against their claim for maintenance.

36. For the aforementioned reasons, I find no merit in this appeal and dismiss the same with no order as to costs.

Appeal dismissed.