# Transport Corporation v. Dinesh

- **Citation:** (2005) 1 ILRA 141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-09-16
- **Case number:** Civil Misc. Writ Petition No. 32788 of 1996
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/transport-corporation-v-dinesh-40308
- **Pages:** 6

## Headnote

Evidence Act, 1872-S. 68-Proof of will-if
a person puts his signature to certify
that he is a scribble or an identifier or a
registering officer, he is not an attesting
witness-Record not showing that any of
attesting witnesses were either dead or
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
142
not available to prove will-No notice was
issued to any of attesting witnesses
requiring then to prove will in questionHence writ dismissed.

Held: Para 11

In view of decision of the Apex Court in
Abdul Jabbar v. Venkata Sastri (supra), it
is amply borne out that if a person puts
his signature on the document for some
other purpose e.g. to certify that he is a
scribe or an identifier or a registering
officer, he is not an attesting witness. It
is not borne out from the record that any
of the attesting witnesses were either
dead or were not available to prove the
Will nor is there anything on the record
to show that any notice was issued to
any of the attesting witnesses requiring
them to prove the will in question. In the
circumstances, the decisions relied upon
by the learned counsel for the petitioners
are unavailing and the ratio flowing from
them cannot be taken aid of to lend
cogency to the petitioner's case.
Case law discussed:
2002 (93) RD 915
AIR 1930 Cal 750
AIR 1983 Orissa 24
2002 (93) RD 98
2004 (96) RD 347
AIR 1955 SC 351
AIR 1939 PC 117
AIR 1969 SC 1147

## Text

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1All] Raj Kumar Gupta V. Chief of the Army Staff Army Head Quarter and others
141
reserved
for
such
compassionate
appointment already exhausted is not
proper.

12. Appointment in public service
on compassionate ground has been carved
out as an exception to the normal
procedure
for
recruitment.
The
compassionate appointment is based on
humanitarian approach and that the whole
object of the scheme is to enable the
family to tide over the sudden crisis. In
LIC
Vs.
Asha
Ramchhandra
Ambedkar, (1994) 2 SCC-718 the Apex
Court has settled the legal position that an
appointment on compassionate ground
may be given only in accordance with
the relevant Rules and Guide-lines that
have been framed by the authorities for
this purpose and no person can claim
appointment on compassionate ground
dehorse the Rules and the Guide-lines.

13. In the case of Himanchal Road
Transport Corporation Vs. Dinesh
Kumar, 1996 (4) SCC-560 it has been
held that-

".....In the absence of a vacancy it is
not open to the Corporation to appoint a
person to any post. It will be a gross abuse
of the powers of a public authority to
appoint persons when vacancies are not
available. If persons are so appointed and
paid salaries, it will be a mere misuse of
public
funds,
which
is
totally
unauthorized. Normally, even if the
Tribunal finds that a person is qualified to
be appointed to a post under the kith and
kin policy, the Tribunal should only give
a direction to the appropriate authority to
consider the case of the particular
applicant, in the light of the relevant rules
and subject to the availability of the post.
It is not open to the Tribunal either to
direct the appointment of any person to a
post or direct the authorities concerned to
create a supernumerary post and then
appoint a person to such a post."

14. In the instant case, the petitioner
has failed to qualify in the Army and there
being no vacancy in the civil department
he could not be given appointment under
the
scheme
and
the
rules
for
compassionate appointment. The action of
the respondents in not appointing the
petitioner on compassionate ground can
not be said to be illegal or arbitrary.

15. For the reasons stated above and
in view of the law laid down by the Apex
Court the writ petition is dismissed. No
order as to costs.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.09.2004

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 32788 of 1996

Mohd. Yusuf

...Petitioner
Versus
Board of Revenue U.P. at Allahabad and
others

 ...Respondents

Counsel for the Petitioner:
Sri M.A. Qadeer

Counsel for the Respondents:
Deoraj
S.C.

Evidence Act, 1872-S. 68-Proof of will-if
a person puts his signature to certify
that he is a scribble or an identifier or a
registering officer, he is not an attesting
witness-Record not showing that any of
attesting witnesses were either dead or
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
142
not available to prove will-No notice was
issued to any of attesting witnesses
requiring then to prove will in questionHence writ dismissed.

Held: Para 11

In view of decision of the Apex Court in
Abdul Jabbar v. Venkata Sastri (supra), it
is amply borne out that if a person puts
his signature on the document for some
other purpose e.g. to certify that he is a
scribe or an identifier or a registering
officer, he is not an attesting witness. It
is not borne out from the record that any
of the attesting witnesses were either
dead or were not available to prove the
Will nor is there anything on the record
to show that any notice was issued to
any of the attesting witnesses requiring
them to prove the will in question. In the
circumstances, the decisions relied upon
by the learned counsel for the petitioners
are unavailing and the ratio flowing from
them cannot be taken aid of to lend
cogency to the petitioner's case.
Case law discussed:
2002 (93) RD 915
AIR 1930 Cal 750
AIR 1983 Orissa 24
2002 (93) RD 98
2004 (96) RD 347
AIR 1955 SC 351
AIR 1939 PC 117
AIR 1969 SC 1147

(Delivered by Hon'ble S.N. Srivastava, J.)

1. Petition in hand has been filed
assailing the judgment dated 16.7.1996
passed by the Board of Revenue by which
it has been held that a Scribe cannot be
treated to be attesting witness unless
attesting witnesses were dead or were not
in a position to be examined.

2. It would appear from the record
that one Mohd. Hanif was Bhumidhar of
land in suit comprising in plot no. 201,
admeasuring 2 Bighas, 7 Biswas. He had
three sons who are parties to the present
proceedings. Mohd. Yusuf one of the sons
instituted a suit under section 229 B of the
U.P.Z.A. & L.R. Act claiming himself to
be the exclusive Bhumidhar of the land in
question on the basis of a Will dated
13.5.1979 which it was alleged was
executed by his father Mohd. Hanif in his
favour. In the written statement, the other
two sons of Mohd. Hanif i.e. the
contesting Opp. parties repudiated the
plaint allegations and denied exclusive
rights as Bhumidhar of the plaintiff over
the property in question and claimed 1/3rd
share each to all the three brothers. The
contesting parties also denied execution
of Will and termed it as forged one. The
trial court by means of judgment dated
29.6.1993 dismissed the suit on the
ground that Will was not proved by
attesting
witnesses.
In
appeal,
the
Commissioner clinched the issue in
favour of plaintiff on the ground that
though attesting witnesses were not
examined but the Scribe proved the Will.
In consequence, the suit was decreed in
appeal.
This
decision
of
the
Commissioner led to filing of second
appeal by defendant respondents which
was allowed by the Board of Revenue
recording a finding that there was no
explanation in the Will for dis-inheriting
the other brothers of the petitioner and
further that the Will was not proved by
attesting witnesses and a Scribe cannot be
treated to be an attesting witnesses unless
attesting witnesses were dead or were not
in a position to be examined.

3. I have heard learned counsel for
the parties and perused the materials on
record. The learned counsel for the
petitioner premised his submission by
canvassing that the Will dated 13.5.1979
was proved by the Scribe and Board of
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1All] Mohd. Yusuf V. Board of Revenue U.P. at Allahabad and others
143
Revenue erred in law in holding to the
contrary. He further submitted that the
father of the petitioner was residing in
Bombay and he, with his free will and
mind, executed the will in favour of the
petitioner. Per contra, learned counsel
appearing for the Opp. Parties contended
that the Will was not proved to have been
executed by Mohd. Hanif and all the
brothers
succeeded
the
property
in
question.

4. Before proceeding to scan the
respective submissions on the aspect, it
would be apt to acquaint myself with the
provisions of the relevant Sections.
Section 68 of the Evidence Act being
germane to the point involved, it is quoted
below.

"68. Proof of execution of document
required by law to be attested.- 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.

Provided
that
it
shall
not
be
necessary to call an attesting witness in
proof the execution of any document not
being a Will, which has been registered in
accordance with the provisions of the
Indian Registration Act, 1908 (16 of
1908), unless its execution by the person
by whom it purports to have been
executed is specifically denied.)"

5. It would thus crystallise from the
provisions of the above section that 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.

6. The term "attested" has not be
defined in the Evidence Act. In Transfer
of property Act, the said term has been
defined in section 3 and being relevant it
is quoted below.

"'attested' in relation to an instrument,
means (and shall be deemed always to
have meant) attested by two or more
witnesses each of whom has been the
executant sign or affix his mark to the
instrument, or has been some other person
sign the instrument in the presence and by
the direction of the executant, or has
received from the executant a personal
acknowledgement of his signature or
mark or of the signature of such other
person, and each of whom has signed the
instrument in the presence of the
executant; but it shall not be necessary
that more than one of such witnesses shall
have been present at the same time, and
no particular form of attestation shall be
necessary."

7. Similarly, Section 63 of the
Indian Succession Act lays down the
meaning of attestation as under:

"Section 63 (c): The Will shall be
attested by two or more witnesses, each of
whom has seen the testator sign or affix
his mark to the Will or has seen some
other person sign the will, in the presence
and by the direction of the testator, or has
received from the testator a personal
acknowledgment of his signature or mark,
or of the signature of such other person
and each of the witnesses shall sign the
will in the presence of the testator but it
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
144
shall not be necessary that more than one
witness be present at the same time, and
no particular form of attestation shall be
necessary."

8. The question that surfaces in the
perspective of above discussion, is
whether a Scribe of the Will can be said
to be an attesting witness who could
prove a document required attestation.
The self-same question cropped up before
Apex Court in a case in Abdul Jabbar v.
Venkata Sastri1. In para 8 of the said
decision, the Apex Court enunciated the
point in question in the following manner.

"Briefly put, the essential conditions
of a valid attestation under Section 3 are:
(1) two or more witnesses have seen the
executant sign the instrument or have
received
from
him
a
personal
acknowledgement of his signature; (2)
with a view to attest or to bear witness to
this fact each of them has signed the
instrument in the presence of the
executant. It is essential that the witness
should have put his signature animo
attestandi, that is, for the purpose of
attesting that he has seen the executant
sign or has received from him a personal
acknowledgement of his signature. If a
person puts his signature on the document
for some other purpose, e.g. to certify that
he is a scribe or an identifier or a
registering officer, he is not an attesting
witness."

The Apex Court, regard being had to a
decision of the Privy Council reported in
AIR 1939 PC 117 further held that a
registering officer cannot be regarded as
attesting witness as it is not proved that he
signed the document in the presence of

1 AIR 1969 SC 1147
executant. A person identifying the
witness puts his signatures on document
to authenticate the fact that he had
identified the executant and the same is
not intended that he had put his signatures
for the purposes of attesting witnesses.
The Apex also placed credence on a
decision in Girja Datt v. Gangotri2 in
which it was held that the two persons
who had identified testator at the time of
registration
of
document
and
had
appended their signatures at the foot of
the endorsement by Sub Registrar were
not the attesting witnesses as their
signatures were not animo attenstandi.
Coming to the present case, it would
appear that the attesting witnesses were
not examined to prove the Will. There is
not an iota of evidence on record to show
that the witnesses were dead or were not
traceable on the date fixed for evidence. It
is borne out from the record that the
attesting witnesses were not called by
issuing notices to prove Will. The Scribe
in his cross-examination, it would appear,
has stated that Will was not registered in
his presence and he did not go to the
office of Sub Registrar at the time of
Registration. No doubt, a scribe can be
said to be an attesting witness, provided
the two attesting witnesses are dead or
incapable to give evidence even after
being summoned for giving evidence if
the test laid down by the Apex court is
fully satisfied to the effect that the
witnesses should have put his signature
animo attestandi i.e. for the purpose of
attesting and he has seen executant sign
and has received from him a personal
acknowledgement of his signatures at the
time of registration. This clearly goes to
prove that scribe in the present case does
not satisfy the requirements laid down by

2 AIR 1955 SC 351
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1All] Mohd. Yusuf V. Board of Revenue U.P. at Allahabad and others
145
the Apex Court and cannot be said to be
an attesting witness.

9. Yet another aspect to be taken
into reckoning is whether the Will spells
out any special reasons for disinheriting
other two sons by the father. This aspect
was reckoned with and the will was
rightly disbelieved by the Board of
Revenue. The circumstances in which the
Will was scribed and brought into
existence do foment doubts whether the
Will was at all executed by Mohd. Hanif
to the exclusion of the rights of other two
sons. No convincing explanation is
forthcoming in order to show that the two
sons were rightly disinherited by Mohd.
Hanif and in the circumstances, the Will
was rightly disbelieved. There should be
some valid justification on record to show
that father nursed any grievance against
the remaining two sons whom he actually
wanted to disinherit. There being nothing
either in the Will or on record, it arouses
suspicion that the Will alleged to be
executed
by
Mohd.
Hanif
was
authenticated one.

10. Lastly, I come to grips with the
case-laws relied upon by the learned
counsel for the Petitioner. The cases
relied upon by the learned counsel for the
petitioner are Smt. Bhuwan Kumari v.
Akbar Ahmad and others3, Haripada
Maity v. Annada Prosad Haldar and
others4, Dhruba Sahu (dead) and after him
Nalumoni Sahu and Anr. v. Paramananda
Sahu5, Madhukar D. Shende v. Tarabai
Aba Shedage6 in vindication of his stand
that a scribe could be attesting witness if

3 2002 (93) RD 915
4 AIR 1930 Cal. 750
5 AIR 1983 Orissa 24
6 2002 (93) RD 98
he has signed just after testator. The
learned counsel appearing for the Opp.
Parties
relied
upon
a
decision
in
Jayarajand Ms. V. Mohana7 to bring home
the point that at least one witness is
necessary to prove a document.

11. In view of decision of the Apex
Court in Abdul Jabbar v. Venkata
Sastri (supra), it is amply borne out that
if a person puts his signature on the
document for some other purpose e.g. to
certify that he is a scribe or an identifier
or a registering officer, he is not an
attesting witness. It is not borne out from
the record that any of the attesting
witnesses were either dead or were not
available to prove the Will nor is there
anything on the record to show that any
notice was issued to any of the attesting
witnesses requiring them to prove the
Will in question. In the circumstances, the
decisions relied upon by the learned
counsel for the petitioners are unavailing
and the ratio flowing from them cannot be
taken aid of to lend cogency to the
petitioner's case.

12. As a result of foregoing
discussion, the writ petition being devoid
of merit is liable to be dismissed and it is
accordingly dismissed.
Petition Dismissed.
----------

7 2004 (96) RD 347
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
146
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.09.2004

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE MUKTESHWAR PRASAD, J.

Criminal Appeal No. 1791 of 1981

Jawahar and others ...Appellants(In Jail)
Versus
State of U.P.

...Respondent

Counsel for the Appellants:
Sri K. Mohan
Sri R.C. Yadav
Sri Umesh Mohan
Sri O.N. Shukla
Sri S.P. Singh
Sri M.S. Yadav

Counsel for the Respondent:
A.G.A.

Indian Penal Code, Ss. 141, 149 and 302Constitution
under-Legality-Unlawful
assembly-Evidence
on
record
that
appellants reached scene of incident in a
group-They had common object to teach
a lession to deceased and his familyMoreover-They used their weapons and
take active part in commission of crimeHence, contention that provisions of S.
149 are not attracted.

Held: Para 40

The explanation to Section 141 provides
in clear words that an assembly which is
not unlawful when it assembled, may
subsequently
become
unlawful
assembly. In the instant case, there is
overwhelming evidence of the injured
and
the
eye
witnesses
that
the
appellants reached the scene of incident
in a group and they had a common
object to teach a lesson to Hriday Narain
and his family. Moreover, they used their
weapons
and
took
active
part
in
commission of the crime. In this view of
the matter, it is not possible for us to
accept the submission made on behalf of
the appellants that provisions of Section
149 I.P.C. are not attracted and A-2 to A5
(except
Jawahar)
could
not
be
convicted under Section 302 with the aid
of Section 149 I.P.C.
Case law discussed:
2004 SCC (Crl.) 1467
2004 SCC (Crl.) 469
2004 (1) JIC 263 (SC)
1995 SCC (Crl.) 993
1991 SCC (Crl.) 1042
1998 SCC (Crl.) 461
AIR 1965 SC 202
AIR 1979 SC 1230

(Delivered by Hon'ble Mukteshwar Prasad, J.)

1. Five accused Jawahar, Chhakauri,
Nankhoo, Ram Nath and Ram Chandra
have filed this appeal against the
judgment and order dated 7.8.1981 passed
by
Sri
D.C.
Srivastava,
the
then
Additional Sessions Judge, Gyanpur,
Varanasi whereby he convicted Jawahar
under Sections 148, 302 and 323/149
I.P.C. and sentenced him to suffer
rigorous imprisonment for a period of one
and half years, imprisonment for life and
six
months
rigorous
imprisonment
respectively there under. The remaining
four accused were convicted under
Sections 147, 323 and 302/149 I.P.C. and
were sentenced to undergo rigorous
imprisonment for a period of one year, six
months
and
imprisonment
for
life
respectively. All the sentences of five
accused were directed to run concurrently.

2. The relevant facts of the case
leading to the trial of the appellants are as
under:

Accused Jawahar and Chhakauri are
sons of accused Ram Nath. P.W.8, Smt.