M.C. Chagla, C.J.
1. This appeal arises out of a suit filed by the plaintiffs for possession of certain properties, and in order to appreciate the contentions of the parties it is necessary to set out a pedigree which will explain the relationship of the parties necessary to understand the material questions.
2. One Shivram had three sons : Narayan, Hari and Ramkrishna. Narayan had a son Madhav who died in 1936 and his sons are Murlidhar and Vasudev. Hari was married to Gangabai and Hari died on March 22, 1927. Gangabai died on July 22, 1941. Hari and Gangabai had one issue, a daughter Narmadabai who died in 1935. She was married to Natu, who is defendant No. 1 in the suit. Ramkrishna died in 1939 and his widow is Gitabai, and Ramkrishna had three sons : Vishnu, Laxman and Ramchandra, who are plaintiffs Nos. 1, 2 and 3. Narayan, Hari and Ramkrishna separated a long time ago. Gangabai made a will on July 14, 1941, and by that will she disposed of the property in suit by giving a part of it to defendant No. 1, another part of it to defendant No. 2, who was a distant relation of Hari, and the third part to charity, appointing defendants-Nos. 1 and 2 as trustees of that charity. Defendant No. 3 is a purchaser of defendant No. l's share in the property which he claims under the will of Gangabai. The defendants in answer to the plaintiffs' claim for possession of the property in suit set up Gangabai's will, and the trial Court held that Gangabai's will was proved, that under the will defendants Nos. 1 and 2 and Charity were legatees and that the plaintiffs were not entitled to succeed in the suit which they had brought. From that decision the plaintiffs have come in appeal before us and various points have been raised by Mr. Dharap on behalf of the plaintiffs.
3. The first contention is that under the will of Hari dated May 5, 1926, Hari constituted Gangabai merely a limited owner of the property in suit and Gangabai had no right to dispose of this property. If that contention were sound, then on Gangabai's death the plaintiffs would succeed to the property as the next rever-sioners of Hari. In order to test this contention we must look at the provision of the will of Hari. In Clause 5 of that will Hari states that On his death his wife Gangabai was to be the owner of the property and excepting her no other person should have any right or interest over the said property. He then expressly excludes his brothers, nephews or other heirs from claiming any right, title or interest to the property. The testator then repeats and reiterates what he has already stated and he says that after his death his wife should enjoy the property as owner thereof and should be the absolute owner and she would be fully entitled to dispose of or transfer the same. Mr. Dharap has relied on one provision in this clause which conies subsequently, which according to him makes it clear that the intention of Hari was not to make his wife the absolute owner of the property and that provision is with regard to his daughter Narmadabai. The testator provides in the will that if there remained any property after the death of his wife, her daughter Narmadabai should be the owner thereof. But he goes on to say that if, per chance, the order of death of the three persons, namely himself, his wife and his daughter, should be changed, then the survivor of these three shall deal with this property as owner thereof and shall be owner thereof. Whatever might have been the position if Narmadabai had survived her mother, the position is clear when we look to the circumstances prevailing on the death of Gangabai. The will of Gangabai only begins to speak at her death and at her death her daughter was not alive, and it is clear from the provisions of her husband's will that she being the survivor of herself, her husband and her daughter, her husband intended that she should be the absolute owner of the property. Therefore, at her death she had full power to dispose of her property as she wished, and we do not agree with Mr. Dharap's contention that the will of Hari read as a whole constituted his wife merely a limited and not an absolute owner.
4. Then Mr. Dharap wanted to raise two contentions with regard to the will itself, assuming that Gangabai was the absolute owner and capable of disposing of the property. Mr. Dharap contended, in the first place, that Gangabai did not have a sound and disposing mind, and, secondly, that the due execution of the will had not been established. We have not heard Mr. Dharap on the first point. Having heard him for some time on the second point we have come to the conclusion that this is a ease where it is essential that further evidence should be placed before the Court and therefore we have decided to remand the matter back to the trial Court. The reasons which have led us to this conclusion are these :
5. The will is alleged to have been executed by Gangabai by her putting her thumb impression on the will, and the execution is attested by four attesting witnesses : Dr. Amrit D. Pillay, Onkar Lahanu, Laxman Sonu Wani and Vishnu Nathu Wani. The defendants, in support of the will, only examined one of these four attesting witnesses, and that was Dr. Pillay. It is not disputed that the other three attesting witnesses are alive and are subject to the process of the Court. It is also not disputed that as a matter of fact one of them, viz. Onkar Lahanu, was actually subpoenaed by the defendants, was present in Court for a long time and was still not examined. Mr. Dharap's contention is that the only attesting witness Dr. Pillay, assuming his evidence is to be accepted in toto, does not prove the due execution of the will, and the evidence with regard to the execution of the will cannot be supplemented by other evidence which the defendants have called. For instance, they have called the evidence of defendants Nos. 1 and 2 themselves and also the evidence of the writer. But Mr. Dharap's contention is that it is not open to the Court to travel outside the evidence of Dr. Pillay, the attesting witness, in order to come to the conclusion whether the will has been duly executed or not. We have got to look to Section 63 of the Indian Succession Act in order to ascertain what the Legislature intended to be the due execution of a will. Section 63 requires proof of three things mentioned in Sub-clauses (a), (b) and (c) of that section before it can be said that a will has been duly executed. The first is that the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction. The second is that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document was intended to have effect as a will, and the third, which is the most important and with which we. are concerned in this appeal, is that the will has to be attested by two or: more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the will, or must have seen some other person sigij the will in the presence and by the direction of the testator, or must have 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 has to sign the will in the presence of the testator. And then the section makes a departure from the English law, viz, that it is not necessary that the witnesses should sign in the presence of each other. Turning to the evidence of Dr. Pillay which has been recorded by the trial Court, Dr. Pillay says that he went to the house of Gangabai after she had placed her thumb mark on the will, and when he came near her she acknowledged before him that the thumb mark on the document was hers. He also says that Onkar Lahanu, one of the attesting witnesses, was there when he arrived. From this evidence it is clear that as far as his own attestation is concerned, he has proved it as required by Section 63. Although he did not see Gangabai put the thumb impression on the document, she acknowledged it in his presence and he signed the will in the presence of the testatrix. But the difficulty arises with regard to the second attestation. As far as Onkar Lahanu is concerned all that this witness is in a position to say is that he was present near Gangabai when he came there. He has not seen Onkar Lahanu seeing the testatrix put the thumb impression. He cannot depose to the fact that Gangabai acknowledged to Onkar Lahanu that the thumb impression was hers. He is not in a position to say that Onkar Lahanu signed the will in the presence of the testatrix. Therefore, it is clear that reading :only the evidence of Dr. Pillay all that he established is that the will was attested by him only. The attestation of the second witness is not established by him and, therefore, if the evidence with regard to attestation was to be confined to the evidence of Dr. Pillay, one of the important factors necessary to be established for the due execution of the will, viz. attestation by two witnesses, would be absent in this case. Mr, Desai for the respondent argues that there is ample evidence on the record which will satisfy the Court that the other witnesses attested the will in the manner required by the law, and the question that we have got to consider is whether it is open to the Court to consider other evidence for the purpose of satisfying itself that the will was attested by two witnesses.
6. Section 68 of the Indian Evidence Act provides 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 ah attesting witness alive and subject to the process of the Court and capable of giving evidence. Therefore, Section 68 makes an important concession to those who wish to grove and establish a will in a Court of law. Although the Indian Succession Act requires that a will has to be attested by two witnesses, Section 68 permits the execution' of the will to be proved by only one attesting witness being' called. But it is important to note that at least one witness should be in a position to prove the execution of the will. If that attesting witness can prove the execution of the will, the law dispenses with the evidence of the other attesting witness. But if that one attesting witness cannot prove the execution of the will, then his evidence has to be supplemented by the other attesting witness being called to prove the execution. In this case the one attesting witness who has been called, and he is the only attesting witness, Dr. Pillay, does not prove the execution of the will. The execution of the will does not merely mean the signing of it by the testatrix or putting her thumb impression on the document, but it means all the formalities required and laid down by Section 63 of the Succession Act, and, as we have already pointed out, Dr. Pillay is not in a position to prove the attestation of the will by the second witness, and, therefore, the evidence of Dr. Pillay falls short of the mandatory requirements of Section 68 of the Evidence Act.
7. In this connection our attention was drawn to Section 71 of the Indian Evidence Act. It provides that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. This is a sort of a safeguard introduced by the Legislature to the mandatory provisions of Section 68, where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. Section 71 can only be requisitioned when the attesting witnesses who have been called fail to prove the execution of the will by reason of either their denying their own signatures, or denying the signature of the testator, or having no recollection as to the execution of the document. Section 71, in our opinion, has no application when one attesting witness has failed to prove the execution of the will and other attesting witnesses are available who could prove the execution if they were called. In any case, on the facts that we have before us there is no question of any attesting witness denying or not recollecting the execution of the document. The difficulty with Dr. Pillay's evidence is that he can only speak to a part of the execution of the document. He cannot depose to all the formalities which go to constitute the execution of a will.
8. In this connection Section 69 of the Evidence act may also be looked at. That provides for cases where no attesting witnesses can be found and then the Legislature provides for proof of the will by proving the handwriting of one of the attesting witnesses and the signature of the executant of the document to be in the handwriting of that person.
9. Mr. Desai's contention is that Section 68 does not rule out supplementary evidence in case the one attesting witness who has been called does not succeed in speaking to all the ingredients which go to make the due execution of the will. Mr. Desai says that the only mandatory provision of Section 68 is that one attesting witness has to be called, and according to him once that has been done, any lacuna in the evidence can be filled up by calling witnesses other than the attesting witnesses. We cannot accept that contention. The whole principle underlying Section 68 is that execution of the will must be proved by at least one attesting witness, that it is only an attesting witness who is entitled to prove the execution of the will. As we have pointed out, it is a concession that the Legislature has made, and if that concession does not result in complying with the mandatory requirements of Section 68, then the only proper method is to call the other attesting witness so that both the attesting witnesses are before the Court and the due execution of the will is proved by the two attesting witnesses which are necessary before a will can become a valid document.
10. The rule of English law is also the same. To prove the attestation of a will in the Court of Probate, it is not necessary to examine both attesting witnesses, But a party propounding a will is bound to call at least one of the attesting witnesses, if he can be produced, to prove due execution, and, if such witness fails to prove due execution, he is bound to call the other, although he may know him to be an adverse witness. (See Mortimer on Probate, 2nd edn., p. 267). Therefore, the rigour of the law in England has gone to this length that the duty is cast upon the party propounding the will to call the other attesting witness in case the first witness is not sufficient to prove the execution of the will even if that witness happens to be an adverse witness, and it is only then when the second witness has been called and he turns out to be hostile that the right arises of leading other evidence. This principle is based on the leading case of Coles v. Coles and Brown (1866) 1 P.C. 70.
11. Our attention was drawn to the decision of the Calcutta High Court in Ayenati Shikdar v. Md. Esmail A.I.R.  Cal. 441 where a bench of Mr. Justice Jack and Mr. Justice Mitter held contrary opinions with regard to the very point which we are considering. According to Mr, Justice Jack, where out of two attesting witnesses one is produced but turns hostile, other evidence becomes admissible under Section 71, and the plaintiff is not bound to produce the other, though alive, whom there are grounds to believe to be hostile. But according to Mr. Justice Mitter it was not intended by enacting Section 71 to differ from the rule of English law that the evidence of the other witnesses should not be introduced unless the absence of the other attesting witness was satisfactorily explained in the case where one of the two attesting witnesses had been called and had denied execution. With very great respect, we prefer the view taken by Mr. Justice Mitter; but we may point out that really the facts of this case are very different from the facts Mr. Justice Jack and Mr. Justice Mitter were considering. In our opinion Section 71 has no application at all because this is not a case where Dr. Pilay has turned hostile or has stated that he has no recollection as to the execution of the document. It is only in those two cases that Section 71 has any application.
12. In Murari Lal v. Muhammad Samiuddin Ahmed Khan : AIR1937All273 a divisional bench of the Allahabad High Court, Mr. Justice Thom and Mr. Justice Allsop, held that there was nothing in the Evidence Act to preclude a person from adducing as witness to the execution of the deed any person who happened to be present when the deed was executed and actually saw it signed by the executant and by the attesting witnesses. According to these learned Judges, Section 71 was merely permissive in character and did not render other evidence which was relevant and admissible evidence inadmissible. With very great respect, it is true that Section 71 is a permissive and enabling section and permits a party to lead certain kind of evidence under certain circumstances. But what we have to consider is not so much Section 71 as the mandatory provisions of Section 68. Section 68 is certainly not permissive or enabling. It lays down the necessary requirements which the Court has to observe in order that a document can be held to be proved.
13. There is an earlier decision of the Allahabad High Court in Shib Dayal v. Sheo Ghulam. I.L.R. (1916) All. 241 In that case the question was as to the execution of a mortgage deed, and this mortgage deed was attested by a large number of witnesses. One attesting witness only was called and he proved that he saw the mortgagor sign the mortgage and that he himself signed his name as an attesting witness. The other witnesses were not called, nor did the witness who was called say that any other attesting witness was present. On that the Court held that in the absence of any rebutting evidence, the mortgage-deed must be considered to be sufficiently proved. In coming to this conclusion the learned Judges relied on an earlier decision of that very Court in Uttam Singh v. Hukam Singh. I.L.R. (1916) All. 112 With very great respect to the learned Judges of the Allahabad High Court, they seem to have overlooked the fact that the decision on which they were relying was really based on Section 69 of the Evidence Act; because in that case the executant and all the attesting witnesses to a mortgage were dead and it was held that the mortgage deed was sufficiently proved by proving the signature of the mortgagor and the signtaures of two of the attesting witnesses. Again with very great respect, this decision, viz. Uttam Singh v. Hukam Singh, is nothing more than merely the enunciation of the very language and words used by Section 69 of the Evidence Act.
14. Then we have a decision of our own Court which is directly in point and that is Roda Framroze v. Kanta Varjivandas, : AIR1946Bom12 That was a case of a will and it was duly signed by the testator and attested by two witnesses and only one attesting witness was called to prove the will. Mr. Justice Kania (as he then was) who tried the case on the Probate Side held that even if the evidence of the one attesting witness was accepted in full, it did not satisfy the requirements of Section 63 because there was no evidence that the alleged second witness was present when the testator executed the document or had received from the testator a personal acknowledgment of his signature. On that ground Mr. Justice Kania dismissed the petition. The matter went to the Court of Appeal consisting of Sir Leonard Stone, Chief Justice, and Mr. Justice Divatia, and the Court of Appeal confirmed the decision of Mr. Justice Kania. Mr. Justice Divatia points out (p. 715) :
Reading Section 63 of the Indian Succession Act with Section 68 of the Evidence Act, it seems to me to be clear that what the person propounding the will has got to prove is that the will was duly and validly executed and that must be done by not simply proving that the signature on the will was that of the testator but that the attestations were also properly made as required by Clause (c) of Section 63. No doubt Section 68 of the Indi an Evidence Act says that it is not necessary to examine both or all the attesting witnesses, but it does not follow therefrom that if one attesting witness only proves that the testator had acknowledged his signature to him, it is not necessary that the acknowledgment by the testator before the other attesting witness need be proved. All that it means is that if two attesting witnesses had signed in each other's presence, it is not necessary to examine both of them to prove that they had received the acknowledgment from the testator.
In our opinion, therefore, as the record stands, the defendants have failed to prove the due execution of the will as required by Section 68.
15. The next question that we have to consider is what order we should make in view of this finding of ours. Mr. Dharap strenuously argues that the duty of propounding the will was on the defendants. Although all the attesting witnesses were available to them they chose only to call one and they should not be given an opportunity to make up the lacuna in the record by leading further evidence. We are dealing with the case of a will and we must approach the problem as a Court of Conscience. It is for us to be satisfied whether the document put forward is the last will and testament of Gangabai. If we find that the wishes of the testatrix are likely to be defeated or thwarted merely by reason of want of some technicality, we as a Court of Conscience would not permit such a thing to happen. We have not heard Mr. Dharap on the other point; but assuming that Gangabai had a sound and disposing mind and that she wanted to dispose of her property as she in fact has done, the mere fact that the propounders of the will were negligent-and grossly negligent-in not complying with the requirements of Section 63 and proving the will as they ought to have, should not deter us from calling for the necessary evidence in order to satisfy ourselves whether the will was duly executed or not. In this case there is an additional consideration why we should exercise our powers under Order XLI, Rule 27. One of the legatees, as we have pointed out earlier, under the will is charity, and if the will is held not be proved, charity would be defeated. Therefore this is clearly a case where the Court would require additional evidence which is available in order to satisfy itself and satisfy its conscience whether in fact the will was duly executed or not. We therefore reverse the finding of the learned Judge as to the due execution of the will and send back this case for the learned Judge to give a proper finding after considering not only the evidence already led and which forms part of the record, but also considering such other evidence as the defendants may lead on the question of the due execution of the will. Such evidence must be confined to the three attesting witnesses who are available and have so far not been called. Under certain eventualities it may be open to the defendants to call evidence beyond these three attesting witnesses. As pointed out in 'Mortimer on Probate' (p. 268):
If an attesting witness called by a party propounding the will gives evidence against the will, such party may cross-examine him, and may call evidence to disprove such of the facts stated by the witness as are material to the issue, and to prove that he has made statements inconsistent with his evidence, although he denies having made such statements, and is not a hostile but merely an adverse witness; for such a witness is not the witness of either party, but of the Court.?
This clearly shows that at this stage Section 71 of the Indian Evidence Act would apply, and if in this case the defendants find that the attesting witnesses give evidence against the will and they want to disprove their evidence, it would be open to them to lead evidence to disprove such evidence given by the attesting witnesses. After considering the evidence the learned Judge will give his finding and send the matter back to us for our consideration within three months from the receipt of the record in the lower Court.
16. With regard to costs, there is no doubt that defendants ought to have put before the Court all the evidence available, especially as the will was strongly contested and also because the defendants were responsible for the making of the will and were taking benefit under the will. We have not dealt with that aspect of the case; but it was certainly their duty to do everything in their power to remove the suspicion of the Court which is naturally aroused when the maker of a will takes benefit and propounds that document. We think the fairest order to make would be that the defendants should pay the costs of the plaintiffs of this appeal in any event. The costs of the suit will abide by the final decision of this appeal.