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2024 DAILYLAW 2342 (CAL)

Rani Bala Mistry v. Harekrishna Mondal

2024-06-19

Sabyasachi Bhattacharyya

body2024
JUDGMENT : SABYASACHI BHATTACHARYYA, J. 1. The respondent nos.1 & 2 are the sons and the appellant nos.1 and 2 as well as respondent no. 3 the daughters of Late Binod Mondal. The plaintiffs pleaded that the said Binod Mondal, who met his demise on April 28, 2009, had executed and registered a Will dated January 28, 2009, allocating his property amongst the plaintiffs and the defendants. On the strength of the Will, the plaintiffs initiated Revenue Case No.172 of 2009 and 299 of 2009 before the Tehsildar, Diglipur for mutation of the property. Accordingly, the land was mutated vide orders dated December 18, 2009 in RC No.230 of 2009, and vide order dated December 21, 2009 in RC No.172 of 2009 as well as RC No.229 of 2009. 2. Subsequently, the defendant nos. 1 and 2/appellants filed their objection to the mutation on January 06, 2010 and January 27, 2010 seeking a review of the order of mutation. The Tehsildar, upon hearing the parties, passed an order dated May 03, 2010 cancelling the earlier mutation by reviewing his earlier order and directing the property to be mutated in the joint names of all the legal heirs of Binod Mondal. 3. The plaintiffs/respondents, accordingly, instituted a suit bearing Title Suit No.5 of 2012 seeking a declaration that the purported Will dated January 28, 2009 is valid, a declaration of right, title and interest of the plaintiffs in the land and for cancellation of the mutation order dated May 03, 2010. 4. The Trial Court dismissed the suit on contest, declaring that all the legal heirs of the deceased Binod Mondal are equally entitled to get shares of the scheduled land. The Tehsildar, Diglipur was directed to partition the land by metes and bounds (if not already done) on the prayer of the parties equally amongst the co-sharers without disturbing present possession of the land by each shareholder as far as practicable after expiry of the appeal period. 5. Being thus aggrieved, the respondents preferred an appeal before the Appellate Court. The Appellate Court allowed the appeal on contest, thereby setting aside the judgment and decree of the Trial Court. 5. Being thus aggrieved, the respondents preferred an appeal before the Appellate Court. The Appellate Court allowed the appeal on contest, thereby setting aside the judgment and decree of the Trial Court. While doing so, the Appellate Court declared that the registered Will dated January 28, 2009 executed by late Binod Mondal is valid and executed in a fit state of mind and further declared that the plaintiffs have a right, title and interest over the share of the landed property as per the registered Will dated January 28, 2009. The Appellate Court further granted a decree of permanent injunction restraining the defendants from giving effect to the order dated May 03, 2010 passed by the Tehsildar, Diglipur and directed the Tehsildar to cancel the mutation order dated May 03, 2010 and pass mutation order as per the registered Will dated January 28, 2010. 6. Being thus aggrieved by the Appellate Court’s judgment and decree, the present second appeal has been preferred. 7. By an order dated July 21, 2022, the present second appeal was admitted on the following substantial questions of law: 1. Whether the judgment and decree of reversal of the Appellate Court below is substantially bad in law when core issue involved in the case about due execution of the will in terms of Section 68 of Evidence Act and Section 63 of Indian Succession Act which remained undecided in the impugned judgment although Trial Court held the purported will was not duly executed in terms of Section 68 of Evidence Act and Section 63 of Indian Succession Act in terms of oral and documentary evidence on record. 2. Whether the judgment and decree of reversal as regards setting aside mutation order passed by Tehsildar is substantially bad in law when a civil suit itself, as regards praying for setting aside mutation order passed by Tehsildar in terms of section 34(1) of Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation 1966 read with Rule 135 of Regulation 1968, is barred under section 204, Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations 1966 read with section 80 of Code of Civil Procedure, 1908. 3. 3. Whether the decree of permanent injunction granted by the Appellate Court below restraining the defendants including Tehsildar from giving any effect to the order dated 03.05.2010, being Exhibit “H” to the suit, passed by the Tehsildar, Diglipur under section 34 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation 1966 read with section 135 of the Act, is contrary to the pleadings and prayer in the plaint of the plaintiff and consequently the order directing mutation as per provision of section 31 of Specific Relief Act is totally prohibited by the section 80 of Code of Civil Procedure, 1908. 8. Learned senior counsel appearing for the appellants argues that the Appellate Court erred in law in reversing the judgment and decree of the Trial Court without adverting to all the reasons attributed by the learned Trial Court. In such context, learned senior counsel cites the judgment of Santosh Hazari vs. Purushottam Tiwari reported at (2001) 3 SCC 179 where the Supreme Court held that the judgment of the Appellate Court must reflect its conscious application of mind and record findings, supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the Appellate Court. While writing a judgment of reversal, the Appellate Court must remain conscious of two principles. First, the findings of fact based on conflicting evidence arrived at by the Trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. Secondly, while reversing a finding of fact, the Appellate Court must assign its own reasons for arriving at a different finding. 9. Learned senior counsel next cites the judgment of K.Karuppuraj vs. M. Ganesan reported at (2021) 10 SCC 777 for the proposition that the Appellate Court has to decide the appeal by formulating the points of determination as provided under Order XLI Rule 31 of the Code of Civil Procedure in terms of the duties of the first Appellate Court as laid down therein. 10. 10. Learned senior counsel also relies on the judgment of Dilbagrai Punjabi vs. Sharad Chandra reported at 1988 Supp SCC 710 in support of the contention that this Court has the power under Section 100 of the Code of Civil Procedure to interfere with a finding if the lower Appellate Court decides an issue of fact giving rise to a substantial question of law. 11. Learned senior counsel next cites Rani Punima Debi and another vs. Kumar Khagendra Narayan Deb and another reported at AIR 1962 SC 567 for the proposition that if the evidence is led in perfunctory manner in respect of registration of Will, with regard to whether the Will was read over to the Testator so as to explain to the Testator the contents of the Will, in the absence of such evidence, the registration of the WILL would not be of much value. 12. Learned senior counsel next cites the judgment of N. Kamalam (Dead) and another vs. Ayyasamy and another reported at (2001) 7 SCC 503 where it was held by the Supreme Court that the Will has to be proved like any other documents except as to the special requirement of attestation prescribed by section 63 of the Indian Succession Act. 13. Learned senior counsel argues that there were several contradictions in the evidence of the attesting witnesses. 14. For example, PW-2 Mihir Bairagi, one of the attesting witnesses, deposed that he put his signature on the purported Will on January 25, 2009 after the Testator put his LTI thereon, which is contrary to the pleadings in the plaint that the Will was executed and registered on January 28, 2009. PW-3 Anindya Nandi, another attesting witness, deposed that the PA of the Sub-Registrar explained the contents of the Will to the Testator. Neither the Sub-Registrar nor his PA, however, was examined. 15. In the plaint, it was stated that the scribe of the Will one Samir Sasmal read over and explained the contents of the Will to the Testator whereas the said Samir Sasmal did not so depose. It was never deposed by any of the witnesses as to whether the Will was read over and explained in Bengali vernacular, the mother tongue of the Testator. 16. It was never deposed by any of the witnesses as to whether the Will was read over and explained in Bengali vernacular, the mother tongue of the Testator. 16. Again, PW-2 deposed that the Sub Registrar explained the contents of the Will in detail to the Testator, whereas paragraph 8 of the plaint states that the scribe Samir Kumar Sasmal explained the contents to the Testator. Thus, three contradictory versions have come up in the pleadings and deposition of the plaintiffs, namely that the Sub-Registrar, alternatively the PA of the Sub-Registrar and alternatively the scribe Samir Kumar Sasmal had read over and explained the contents of the Will to the Testator. 17. In view of such glaring contradictions, it is argued that the plaintiffs failed to prove the Will duly in terms of section 63 of the Indian Succession Act, 1925. 18. Moreover, PW-1, who is the beneficiary of the Will, and none of the attesting witnesses, proved the Will. Therefore, having not been proved in accordance with law, the Will itself could not have been declared to be valid by the Appellate Court. 19. That apart, it is pointed out that there is no date of execution appearing on the last page of the Will, nor are the attesting witnesses described as such below their signatures. 20. As such, it is argued that the Appellate Court substantially erred in law in reversing the judgment and decree of the Trial Court, although the latter was well-reasoned and took into consideration of all aspects of the matter. 21. With regard to the Tehsildar’s power, learned senior counsel cites Regulation 85 (5) of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966, under which the Tehsildar has power to decide on objections to mutation. It is argued that the Tehsildar, while so deciding, incidentally went into the question of the validity of the Will, which he was authorized in law to do. 22. It is also argued that Regulation 204 of the 1966 Regulation debars the Civil Court from sitting in judgment over the mutation order passed by the Tehsildar. 23. It is also contended that the suit was barred under section 80 of the Code of Civil Procedure 1908, since no notice was served under the said provision. 24. 22. It is also argued that Regulation 204 of the 1966 Regulation debars the Civil Court from sitting in judgment over the mutation order passed by the Tehsildar. 23. It is also contended that the suit was barred under section 80 of the Code of Civil Procedure 1908, since no notice was served under the said provision. 24. Lastly, the appellants argue that the Appellate Court acted palpably without jurisdiction in passing a decree of permanent injunction, regarding which there was no relief sought in the plaint, nor were ingredients thereof pleaded in the plaint. The same logic, it is argued, also applies to the mandatory direction on the Tehsildar to cancel the mutation. 25. Learned counsel appearing for the respondents argues that there is no hard and fast rule that any specific form is to be adhered to for attestation under section 63 of the Indian Succession Act. 26. It is argued that the one stray sentence in the cross-examination of PW-2 as regards the date of execution of Will being January 25, 2009 instead of January 28, 2009, which is contradictory to the rest of the statements made by the said witness and all other PWs, could not be the basis of holding that the Will was not properly proved. 27. It is argued that it might very well have been that the Will was presented for registration in the morning of January 25, 2009 without the LTI (Left Thumb Impression) of the Testator. There is no hard and fast rule that at the time of presentation of the Will for registration, the Testator has to put his LTI with the signature of witnesses. 28. Further, it is argued that registration is not compulsory for a Will and therefore, any lapse in the procedure of registration cannot be a ground to disbelieve the Will itself. 29. Learned counsel for the respondents next argues that the Will has been admitted by the defendants/appellants who were contesting in the mutation proceedings and signed Forms J & K issued by the Tehsildar. The signature of the appellants on the reverse of the said Forms, which is a part of the records, has not been denied by the appellants. 30. Learned counsel for the respondents next argues that the Will has been admitted by the defendants/appellants who were contesting in the mutation proceedings and signed Forms J & K issued by the Tehsildar. The signature of the appellants on the reverse of the said Forms, which is a part of the records, has not been denied by the appellants. 30. It is reiterated that apart from the single isolated discrepancy in the statement of Mihir Bairagi (PW2), an attesting witness, in his cross examination regarding the date of execution of the Will, there is no other lapse in the consistent evidence adduced on behalf of the plaintiffs in support of the execution of the Will. 31. Learned counsel for the respondents seeks to explain away the discrepancy by arguing that it appears from the sequence of the statements that there might have been a mistake in the recording of the evidence. PW-2, it is pointed out, has also stated that the scribe of the Will produced the draft Will on January 25, 2009. As such, in the same breath, PW-2 could not have said that the Testator signed the actual Will on the said date. 32. Thus, it is argued by the respondents that the Appellate Court was justified in setting aside the judgment and decree of the Trial Court. 33. Heard learned counsel for the parties. 34. Before entering into the questions of law formulated, the scope of interference in a second appeal is required to be looked into. 35. In Dilbagrai Punjabi (supra), the Supreme Court observed that although it is true that the High Court, while hearing a second appeal, has no jurisdiction to reappraise the evidence and reverse the conclusion reached by the first Appellate Court, at the same time, its power to interfere with the findings cannot be denied if the lower court’s decision on an issue of fact gives rise to a substantial question of law. The said position is also borne out by Section 103 of the Code of Civil Procedure. 36. Again, in the judgment of Achintya Kumar Saha vs. M/s Nanee Printers and others reported at 2004 (1) Supreme 809 it was held by the Supreme Court that if the first Appellate Court failed to decide the core issue, the same gives rise to a substantial question of law. 37. 36. Again, in the judgment of Achintya Kumar Saha vs. M/s Nanee Printers and others reported at 2004 (1) Supreme 809 it was held by the Supreme Court that if the first Appellate Court failed to decide the core issue, the same gives rise to a substantial question of law. 37. Thus, what is to be ascertained is whether the first Appellate Court failed to advert to the core issues involved in the matter and discussed all the questions and issues which were decided by the Trial Court by touching upon the reasons attributed by the Trial Court for coming to its findings. 38. In this context, Santosh Hazari (Supra) acquires relevance. The Supreme Court held therein that the judgment of the Appellate Court must reflect its conscious application of mind and it must record findings, supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the Appellate Court. 39. The Supreme Court went on to hold that while writing a judgment of reversal, the Appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the Trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. Secondly, while reversing a finding of fact, the Appellate Court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing the further appeal that the first Appellate Court had discharged the duty expected of it. It was highlighted by the Supreme Court that the first Appellate Court is the final court of facts. 40. Again, in K. Karuppuraj (supra), the Supreme Court reiterated that while disposing of the first appeal, the first Appellate Court is required to raise the points for determination as required under Order XLI Rule 31 of the Code of Civil Procedure. Being the first Appellate Court, it has to discuss the entire matter and the issues in detail. 40. Again, in K. Karuppuraj (supra), the Supreme Court reiterated that while disposing of the first appeal, the first Appellate Court is required to raise the points for determination as required under Order XLI Rule 31 of the Code of Civil Procedure. Being the first Appellate Court, it has to discuss the entire matter and the issues in detail. Rule 31 of Order XLI mandates that the judgment of the Appellate Court shall state the points for determination, decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 41. Seen from such perspective, I find that the Appellate Court failed to advert to the germane issues on which the Trial Court rendered elaborate findings. 42. One of the core issues on which the learned Trial Judge based his findings was that the plaintiff failed to prove the Will in accordance with law. The Trial Court elaborately discussed the evidence on record and found several contradictions in the evidence adduced by the attesting witnesses themselves, which according to him vitiated the proof of the Will itself. 43. Although the learned Trial Judge also observed that there is doubt regarding the mental soundness of the Testator on the premise that the Testator and his wife were totally dependent upon the mercy of the plaintiffs and therefore the possibility of undue influence could not be ruled out, the said factor itself could not be a proper justification for coming to the conclusion that such circumstances ipso facto vitiated the execution of the Will. The learned Trial Judge also held that for giving valid consent the brain of the Testator should have been in proper condition, which was doubted by the said court in view of the Testator having suffered from paralytic attack which according to the Trial Judge affected the central nervous system of the Testator. However, the said finding was based on conjecture and, as such, the observations of the Trial Judge on the mental soundness of the Testator cannot be sustained. 44. However, the said finding was based on conjecture and, as such, the observations of the Trial Judge on the mental soundness of the Testator cannot be sustained. 44. However, that apart, it was also found by the learned Trial Judge that none of the attesting witnesses said clearly to the Court that the Will was read over and explained to the Testator in their presence and the Testator put the LTI in their presence and they signed in presence of the Testator and the Sub-Registrar. It was also recorded, importantly, that Harekrishna Mondal, the plaintiff, identified the Will before the Court, although he was not an attesting witness of the Will. 45. The attesting witnesses did not identify the Will and depose before the Court that the Will was executed and signed in their presence. 46. Apropos the above, it is found from the records that the learned Trial Judge was right in observing that the Will was not proved by the attesting witnesseses as per the requirement of law and it is only the plaintiff who had proved the Will, despite him being one of the major beneficiaries of the Will. 47. Thus, the mode of proof and admissibility of the Will itself was under a shadow of doubt. 48. That apart, as highlighted by the learned Trial Judge, there were several discrepancies in the evidence. 49. There was a stark variation between pleading and proof. A plain reading indicated that the Will was stated in the plaint to be executed as well as registered on January 28, 2009 between 4.30 -5.00 pm before the Sub-Registrar. It is the consistent case of the plaintiff that the Sub- Registrar came to the house of the Testator and the Testator signed in presence of the Sub-Registrar. 50. However, the PW-2, Mihir Bairagi, who was one of the attesting witnesses, although stating in his evidence-in-chief that the Will was executed by the Testator between 4.30 and 5.00 pm on January 28, 2009 before the Sub Registrar/Assistant Commissioner, Diglipur and the Sub-Registrar explained the contents of the Will in detail to the Testator who, thereafter, put his signature on the LTI, such case was demolished in his cross-examination. Not once but several times in his cross- examination, PW-2 stated that he went to the house of the Testator on January 25, 2009 when the scribe of the Will one Shri Sasmal was present in the room and had shown a draft of the Will to PW -2 and to the Testator himself. Such draft, it is to be noted, was never produced in evidence. 51. Throughout his cross-examination, the PW-2 continued to state that the PW-2 put his signature on the alleged Will on January 25, 2009 and the Testator put his LTI thereon on said date. 52. Learned counsel for the respondents seeks to justify the said misstatement by insinuating that there was an error in the recording of evidence. However, the law is well-settled that in the event there is any objection to recording of evidence, the same has to be brought to the notice on the same day before the Court concerned. In the present case, however, the PW-2 duly signed the deposition and no objection was ever raised before either the trial court or the first appellate court with regard to the veracity of such recording of evidence. 53. Moreover, learned counsel for the respondents also argues that the draft Will was explained to the Testator on January 25, 2009 and the actual Will was executed on January 28 of the same year. However, such argument goes against the grain of the entire cross-examination of the PW-2, where he consistently made the statement several times over that the relevant date was January 25, 2009. In no uncertain terms, the PW-2 stated that he put his signature on the said ‘Will’ (as opposed to any draft Will) on January 25, 2009 itself and that the Testator also put his LTI on the said date itself. 54. This piece of evidence is contrary and diametrically opposite to the plaint case and demolishes the plaintiffs’ case that the Will was executed on January 28, 2009. Although PW-3, the other attesting witnesses Anindya Nandi, corroborated the plaint case, such patent contradiction between the depositions of the two attesting witnesses is irreconcilable and cannot be harmoniously read in any manner. 55. That apart, there are several discrepancies in the evidence adduced by the plaintiffs’ witnesses with regard to who read over and explained the Will to the Testator. 55. That apart, there are several discrepancies in the evidence adduced by the plaintiffs’ witnesses with regard to who read over and explained the Will to the Testator. Such discrepancy acquires vital importance since the Will was not a holograph Will and the Testator put his LTI, as opposed to signature, in the said Will. Although the paralysis of the Testator might have been a reason for doing so, it cast a heavier burden on the plaintiff, who is the propounder of the Will, to prove beyond doubt that the contents of the Will were clearly explained in the mother tongue of Testator i.e. Bengali vernacular before the Testator put his LTI on it. 56. We find from the evidence, as rightly argued by learned senior counsel appearing for the appellant, that there is contradiction in the deposition of the plaintiff’s witnesses on such account as well. Three versions have come forth from the evidence of the plaintiffs and the plaint. 57. In paragraph 8 of the plaint, it is stated that the contents of the Will was read over and explained to the Testator at his residence by the deed writer Shri Samir Kumar Sasmal. 58. PW-2 Mihir Bairagi, who was one of the attesting witnesses, stated in paragraph-4 of his examination-in-chief on the other hand that the Sub-Registrar explained the contents of the Will in detail. PW-3, the other attesting witness, also corroborated in his examination-in-chief that the Sub-Registrar explained the contents of the Will to the Testator. 59. Again, PW-3 in his cross-examination by the defendant nos.1 and .2 stated that the PA of the Sub-Registrar expressed the contents of the Will to the Testator. 60. Learned counsel for the respondents seeks to explain away such discrepancy by arguing that several persons might have been explained the Will to the Testator. However, the said argument is a mere afterthought from the bar, since none of the depositions nor the plaint has a whisper regarding several persons having explained the Will to the Testator. Thus, in view of the three contradictory versions in that regard, the aspect of the Will having been explained in the mother tongue of the Testator, who was in a bedridden and paralytic state at the relevant juncture and put his LTI on the Will, suffers from dubiousness. 61. Thus, in view of the three contradictory versions in that regard, the aspect of the Will having been explained in the mother tongue of the Testator, who was in a bedridden and paralytic state at the relevant juncture and put his LTI on the Will, suffers from dubiousness. 61. In the judgment of Gurdial Kaur and others vs. Kartar Kaur and others reported at 1998 (3) Supreme 504 , the Supreme Court observed that the law is well-settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel such suspicious circumstances. 62. In the case of Rani Punima Debi (supra), the Supreme Court held that the mere fact that a Will is registered will not, by itself, be sufficient to dispel all suspicions regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that it was made in such a manner that it was brought home to the Testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the Testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the Testator reading the will) that the Testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. 63. It is not unknown that registration may take place without the executant really knowing what he was registering. 63. In N. Kamalam (supra), it was observed by the Supreme Court that it would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. 64. Section 63 of the Succession Act reads as follows: 63. Execution of unprivileged Wills.— Every Testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:— (a) The Testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the Testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (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 acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the Testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 65. In clause (c) of Section 63, it is envisaged that 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 of and by the direction of the Testator, or has received from the Testator a personal acknowledgement of his signature or mark. 66. 66. Although it is provided in the said provision that it shall not be necessary that more than one witness be present at the same time, nevertheless, each of the witnesses are to sign the Will in presence of the Testator. 67. The very first component in clause (c) is not satisfied properly in the present case. 68. Insofar as the PW-2 is concerned, it is his case in cross- examination that he saw that the Testator put his LTI on January 25, 2009. Read as whole, statements of the two attesting witnesses PW-2 and PW-3 indicate that both could not have seen the Testator sign or affix his mark to the Will, since as per the PW-3, he saw the Testator put his LTI on January 28, 2009 whereas PW-2 had seen the same according to his own statement on January 25, 2009. 69. There is nothing on record to indicate that either of the attesting witnesses stated anywhere that they had not seen the Testator affix his LTI but had received from the Testator a personal acknowledgment of his mark. Hence, the contradiction between the versions of the two attesting witnesses is irreconcilable inasmuch as both could not have seen the Testator put his LTI on the Will, since PW2 states in his cross-examination that he saw it on January 25, 2009 whereas PW3 says that he saw it on January 28, 2009. 70. Thus, there is glaring contradiction in the evidence of the attesting witnesses themselves as to the date and time of execution of the Will and also as to whether there was proper explanation in the mother tongue of the Testator of the Will. In fact, three versions have come regarding who explained the Will to the Testator, which vitiates the very basis of such contention of explanation, which is an essential feature in the present case, since the Testator was bedridden with paralysis and put his LTI instead of signing the document. The propounder having thus failed to properly prove the execution of the Will in the above circumstances, it cannot be said that the ingredients of section 63 of Succession Act were satisfied. 71. A striking feature of the present case is that the first Appellate Court did not take into consideration the above aspects, which formed the very basis of the Trial Court’s judgment. 71. A striking feature of the present case is that the first Appellate Court did not take into consideration the above aspects, which formed the very basis of the Trial Court’s judgment. The first Appellate Court merely proceeded on the premise that the Will had been proved by the attesting witnesses and went on to reverse the finding of the learned Trial Judge without adverting to all the reasons given by the Trial Judge and the above vital aspects of the case, which were elaborately considered by the learned Trial Judge. 72. The learned Appellate Court put a thrust on Section 68 of the Indian Evidence Act, 1872 and Section 3 of the Transfer of Property Act to consider what would be the proper attestation, being oblivious of the settled law that unless due proof of the Will was undertaken in terms of Section 63 of the Succession Act, mere compliance of Section 68 of the Evidence Act and Section 3 of the Transfer of Property Act would not suffice. 73. Moreover, the Appellate Court laid undue emphasis on the fact that no expert evidence was obtained by the defendants to assail the LTI of the Testator, although the defendants have not specifically challenged the LTI at all but have challenged the factum of due execution of the Will by the Testator having full knowledge of what he was executing. 74. Moreover, the Appellate Court failed to take into consideration that the Will was not proved by either of the attesting witnesses while being marked as exhibit but by the plaintiff himself who was the beneficiary of the lion’s share of the Will. 75. Thus, from the above discussions, it is evident that the judgment of the Appellate Court below is substantially bad in law in view of the learned Appellate Judge having failed to advert to the core issues involved. 76. This question, accordingly, is answered in the affirmative in favour of the appellants. 77. As regards the second question of law formulated above, the appellate court observed that the Tehsildar did not have jurisdiction to hold whether the Will is genuine or not. To examine such question, the powers of the Tehsildar as conferred under the Andaman and Nicobar Land Revenue & Land Reforms Regulations, 1966 are to be looked into. 77. As regards the second question of law formulated above, the appellate court observed that the Tehsildar did not have jurisdiction to hold whether the Will is genuine or not. To examine such question, the powers of the Tehsildar as conferred under the Andaman and Nicobar Land Revenue & Land Reforms Regulations, 1966 are to be looked into. Clause 85(5) provides that should any objection to any entry in the register of mutation be made orally or in writing, in respect of disposed of cases, such objection shall be disposed of by the Tehsildar and every entry in the register of mutation shall be tested and if found correct or after correction as the case may be, shall be certified by such officers and in such manner as may be prescribed. Hence the Tehsildar, under Clause 85(5) of the 1966 Regulation, has ample power to incidentally decide the objections raised with regard to any entry of mutation. 78. In the present case, the Tehsildar did precisely that on an objection being raised by the defendants/ appellants, by incidentally deciding whether the entry was correct. Since the very basis of the previous entry of mutation was the validity of the Will-in-question, the Tehsildar was perfectly justified in entering into such question on an objection being raised by the dependents/appellants as to the Will, thereby considering tentatively whether the Will is genuine or not. Such tentative adjudication was germane and formed the crux of consideration of the objection and as such, the Tehsildar had full authority to enter into such issue and based on the outcome thereof, to cancel the previous mutation and direct the property to be mutated afresh jointly in the name of all the heirs of the alleged testator. 79. Hence, the finding of the Appellate Court that the Tehsildar’s order was liable to be set aside since the Tehsildar had no jurisdiction, is bad in law and is required to be set aside. Consequentially, the decree of permanent injunction restraining the defendants from giving effect to the order of the Tehsildar, Diglipur dated May 03, 2010 and the direction on the Tehsildar to cancel the mutation order of even date and to pass mutation order as per the registered Will were also bad in law and are required to be set aside. 80. Consequentially, the decree of permanent injunction restraining the defendants from giving effect to the order of the Tehsildar, Diglipur dated May 03, 2010 and the direction on the Tehsildar to cancel the mutation order of even date and to pass mutation order as per the registered Will were also bad in law and are required to be set aside. 80. Accordingly, the second question is also answered in the affirmative, holding that the Tehsildar had jurisdiction to make observations on and decide prima facie the validity of the Will and the first Appellate Court substantial erred in law in setting aside such order of the Tehsildar. 81. However, since the said part of the decree whereby the Appellate Court below granted permanent injunction and a direction to cancel the mutation was incidental and consequential upon the declaration that the Will is valid, the second component of the second substantial question of law cannot be upheld since the adjudication was not barred under section 204 of the 1966 Regulation. 82. Insofar as section 80 of the Code of Civil Procedure is concerned, the violation of the same was not urged in the trial Court and the trial Court did not return any finding on the same and as such, the said argument was a non-issue in the suit and need not be gone into. 83. The third substantial question of law, regarding whether decree of permanent injunction passed by the Appellate Court restraining the defendants including the Tehsildar from giving effect to the order dated May 03, 2010 is contrary to the pleadings and prayer in the plaint, need not be gone into as well in view of the above observations holding that such portion of the decree was bad in law even otherwise. 84. Before parting with the matter, another argument made by the respondents is required to be considered. Learned counsel for the respondents contends that defendants/appellants had admitted the execution of the Will since they had signed on the reverse of the Form J & K before the Tehsildar at the time of the original mutation in terms of the Will. However, I find from the lower court records that the said order of mutation was marked as Exhibit ‘F’ and the signature of the Tehsildar as exhibit- ‘F1’. However, I find from the lower court records that the said order of mutation was marked as Exhibit ‘F’ and the signature of the Tehsildar as exhibit- ‘F1’. Neither the writing on the reverse thereof as a whole nor the individual signatures purportedly appearing on the reverse were proved or marked as exhibits at all. 85. Thus, such question was rightly not entered into by either of the Courts below and there is no reason why this Court, sitting in second appeal, should enter into such factual question for the first time. In any event, since the said purported signatures were not even marked as exhibits, it is beyond the pale of the present adjudication to consider the alleged effect of those. 86. In view of the above, the second appeal succeeds. 87. Accordingly, SAT/8/2021 is allowed on contest, thereby setting aside the judgment and decree dated October 28, 2021 passed by the learned Additional District Judge, Mayabunder in Title Appeal No. 02 of 2019, whereby the judgment and decree dated September 19, 2018 passed by the learned Civil Judge, Senior Division at Mayabunder in Title Suit No. 05 of 2012 was set aside, thus reviving the judgment and decree of the learned Trial Judge whereby the suit filed by the plaintiffs/respondents was dismissed and it was held that all the legal heirs of the deceased Binod Mondal are equally entitled to get shares of the schedule land and the Tehsildar, Diglipur be directed to partition the land by metes and bounds (if not already done) on the prayer of any of the parties equally among the co-sharers without disturbing the present possession of the land by each shareholder as far as practicable. 88. There will be no order as to costs. 89. Department is directed to draw up a formal decree accordingly.