1. The question that I am called upon to answer in this second appeal is whether the execution and attestation of a will dated 16th May, 1947 are proved.
2. The facts are simple: The suit was brought by the first respondent for declaration of his title to and possession of the site described in the plaint schedule after ejecting the defendants therefrom and for recovery of Rs. 20/- towards the value of bricks removed by the defendants therefrom and also for profits. The plaintiff alleged that the site belonged to Karri Somulu. Under a will dated 16th May, 1947 he bequeathed the site to his wife and foster daughter and after their death to the children of the foster daughter. after the death of the testator, the wife and daughter were in possession and after their death, the latter's daughter sold it to the plaintiff under a registered sale deed dated 14th July, 1964. But, in July, 1964 defendants 1 and 2 trespassed into the site, put up a hut thereon and admitted into its possession. Hence the suit.
3. The first defendant denied the execution of the will by Somulu and denied its genuineness and validity also. He denied that Somulu fostered a daughter. In fact, the site did not belong to Somulu. In a partition with his brother, the site fell to the share of Thudupulu, grandfather of the first defendant. Ever since then Thudupulu and his successors were in possession and enjoyment of the same. Thus, the first defendant also required title by adverse possession. the alleged and nominal one. The alleged trespass was false.
4. Defendants 2 and 3 while contending that they had nothing to do with the site adopted the other contentions raised by the first defendant.
5. The Trial Court held that prior to 1964 Somulu and his family had been in possession of the site. He had title thereto. But, the first defendant came in to possession of it in 1964 illegally. But, unfortunately neither the execution not attestation of the will said to have been executed by Somulu on 16th of May, 1947 marked as Ex. A-1 was proved in accordance with law. Consequently a declaration that the plaintiff was entitled to the site and to its possession could not be granted. The appellate Court held that Somulu fostered a daughter and he had the title and possession of the site. Since it was a registered will and there were no suspicious circumstances surrounding it, the lower appellate Court thought that the evidence on record was sufficient to establish the execution and attestation of the will. Accordingly, it set aside the decree and judgment of the trial Court and decreed the suit. The first defendant has brought this appeal, impleading not only the plaintiff as the first respondent but also defendants 2 and 3 as respondents 2 and 3. The second appeal was dismissed as against the second defendant by order of this Court dated 23-10-1972.
6. In view of the findings of the fact of the Courts below, the only point pressed before me for the appellant is that there is no proof on record to the execution and attestation of Ex. A-1, as required by Sec. 68 of the Evidence Act read with Section 63 of the Indian Succession Act. It is argued that though there were two attestator on the will only one of them was examined as P. W. 1 and neither the other attestator nor the scribe was examined . In regard to the execution and attestation there is no other evidence excepting that of P. W. 1 and his evidence is wholly inadequate to satisfy the requirements of proof as enunciated in the aforesaid provisions of Law.
7. It is common ground that there is no evidence on record, other than that of P. W. 1 which throws any light on the execution and attestation of the will. So, one has to look to the evidence of P. W. 1 alone for finding out proof of the will.
8. The attack on the will is two-fold. One is that even the executor's actual execution of the will is not proved, for there are no signatures or thumb marks of the executor under the body of the will. There is only one thumb mark of his in the entirely of the will and the purports to have been put at the time of the registration. It is, therefore, submitted in the first place that the very execution is not proved. Secondly a will is required to be attested by not less than two attestors in the presence of the executor. There is no proof that the two attestors attested in his presence. On the other hand, learned counsel for the plaintiff respondent contended that there are no surrounding circumstances which throw any doubt or cloud on the will. Its provisions are quite natural and further it was registered. Indeed, the absence of suspicious circumstances and its registration weighed with the lower appellate Court.
9. In order to test these contentions it is first necessary to read the two relevant provisions of the law. Section 68 of the Evidence Act reads thus:
'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 of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied.'
Section 63 of the Indian Succession Act, which lays down the manner in which unprivileged wills are to be executed may then be read :
'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 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 shall not be necessary that more than one winess be present at the same time, and no particular form of attestation shall be necessary .'
Even at the outset it must be noted that the proviso to Section 68 of the Evidence Act has no application to the present case, because the proof that is now required is in regard to a will and further the first defendant in his written statement specifically denied its execution.
10. Now taking up the first objection that there is no proof of execution of the will by the testator it is rested on the absence of testator's thumb mark right under the body of the will. Ex. A-1 has three pages ; the body of the will being on pages 1 and 3 and the registration endorsement being on page 2. There is no thumb mark of the executor either in page (1) or page (3). But, his nishani has been put on both the pages under the body of the will and that was done obviously by the scribe. It is clear even to the naked eye that he scribe himself wrote the 'nishani' on both the pages. P. W. 1, the attestor, stated in his evidence that Karri Somulu executed a will dated 16th May, 1947 and he did it in sound disposing state of mind. In cross-examination he also stated that 'Somulu put his Nishani on Ex. A-1 in my presence' . Later, there is another statement that 'before Registrar Somulu put his 'nishani' in my presence.' The question is whether this is sufficient proof of the execution of the will by the testator. Clauses (a) and (b) of S. 63 of the Indian Succession Act make the position clear. The testator may sign or affix his thumb mark to the will or it may be signed by some other person in his presence and by his direction. That signature or mark has to be so placed that it shall appear that it was intended thereby to give effect to writing as a will. So, it is not necessary that the testator himself shall put his signature or affix his own mark to the will. Some other person can as well do it in his presence and by his direction. The scribe put his 'nishani' under the body of the will on both pages 1 and 3 immediately below the written matter. P. W. 1 the attestor stated that the executor put his nishani on the will in his presence. Further the testator obviously admitted his execution of the will before the Sub-Registrar and affixed his thumb impression thereto on the registration endorsement. P. W. 1 speaks about this also. In my opinion this is sufficient to prove the execution of Ex. A-1 by Somulu as required by Section 63 of the Indian Successor Act. I find full support to this view from a Bench Decision of this Court in China Pullappa v. Chinna Bayanna, : AIR1962AP54 Satyanarayana Raju, J. as he then was construing the provisions of Section 63 observed that :
'On a true construction of the words it shall be signed by some other person in his presence and by his direction in Section 63, the proper form of such signature is , and always has been recognised to be, for the other person to sign the name of the testator and not his own. Therefore, when some other person signs for the testator by writing out the testator's name in his presence and by his direction, it would amount to due execution within the purview of Section 63 of the Act.
Further, where an illiterate testator admits the execution of a will before the Sub-Registrar and affixes his thumb impression thereto, there is proper execution of the will.'
11. Thus, there is no doubt that the execution of Ex. A-1 as such by Somulu is proved.
12. But, proof of execution by the testator alone is not sufficient. A will is a document which is required to be attested by at least two witnesses. That is clear from clause (c) of Section 63 of the Indian Succession Act. Section 68 of the Evidence Act forbids the using of a document which is required by law to be attested as evidence until at least one attesting witness has been called for the purpose of proving its execution, of there be an attesting witness alive. What is required to be proved by calling at least one attesting witness is the execution of the document. By execution of a will is meant the whole process prescribed under section 63 of the Indian Succession Act. Indeed its marginal note reads execution of unprivileged wills. Such execution includes not only the signing or affixing the mark of the testator to the will or by somebody else in his presence and by his direction but also attestation by two witnesses. Reading Section 63 it is quite plain that attestation as postulated by clause (c) is a part of execution of a will. Such attestation has to be by two or more witnesses. Each of them must have either seen the testator sign or affix his mark to the will or has been 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. It is also necessary that each of the witnesses shall sign the will in the presence of the testator. However, it is not incumbent that more than one witness be present at the same time. Nor, is there any particular form of attestation prescribed.
13. Therefore, reading Section 68 of the Evidence Act with Section 63(c) of the Succession Act it is seen that it would be sufficient even if one attestor is examined. But, that attestor should speak to all the elements of clause (c) of Section 63 of the Succession Act. The attestor witness should speak not only about the testator's signature or affixing his mark to the will or somebody else signing it in his presence and by his direction or that he had attested the will after taking acknowledgment from the testator of the signature or mark, but also should speak that each of the witnesses had signed the will in the presence of the testator. But, unfortunately for the plaintiff, this is very much lacking from the evidence of P. W. 1.
14. I may here quote verbatim the few statements made by that witness in regard to the execution and attestation of the will. In Chief Examination he states 'One Karri Somulu executed a will dated 16th May, 1947. I am one of the attestors and also the identifying witness on the said will. The will is Ex. A-1 Karri Somulu executed Ex. A-1 is disposing state of mind.' This is all he states about the execution including attestation of the will. In cross-examination he states; Ex. A-1 was written at the house of K. Satyanarayana. Somulu took me to the house of K. Satyanarayana to attest the will. One Bolla Venkataraju and Somulu came to my house and took me. (It may be mentioned here that Bolla Venkata Raju is the other attestor). It is not true to say that I was not present at the time of execution of Ex. A-1 and that I later on attested it. Somulu put his nishani on Ex. A-1 in my presence. No documents were produced at the time of execution of Ex. A-1. Before Registrar Somulu put his nishani in my presence. The first and third pages of Ex. A-1 do not contain the thumb impression of Somulu.' There is no other statement relating to the attestation of the will contained in the evidence of P. W. 1. as I have already pointed out, no other witness or document throws any light on the attestation of the will.
15. The aforesaid evidence of P. W. 1 does not show that Bolla Venkataraju, the other attestor signed the will in the presence of the attestor or that he attested the will after seeing the testator affixing his mark to the will or seen the scribe signing the will in the presence and under the direction of the testator. Thus, the ingredients of attestation contained in Clause (c ) of Section 63 which are necessarily part of execution of a will are not established in this case. Therefore, I must come to the conclusion however, reluctantly in the circumstances of the case, that there is no proof for proper attestation of Ex. A-1. I am supported in this view by the following decisions:
16. In Girija Dutt v. Gangotri Datt, : AIR1955SC346 was held that in order to prove the due attestation of the will, the profounder of a will has to prove that the two witnesses saw the testator sign in the will and they themselves signed the same in the presence of the testator. That is held to be proper proof of attestation as required by Section 63 of the Succession Act. It was further held that:
'It cannot be presumed from the mere signature of two persons appearing at the foot of the endorsement of registration of a will that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68 of the Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the will. This provision should be complied with in order that those two persons might be treated as attesting witnesses.'
17. This later observation also answers the contention of the learned counsel for the respondents that the two attestors had figured in Ex. A-1 as the identifying witnesses at the time of registration. It was argued that since they once again signed at the time of the registration of the document, their attestation of the will itself can be taken as proved. But, as held by the Supreme Court, the attestor's participation even at the time of registration does not dispense with the proof of execution and attestation of the will in accordance with Section 68 of the Evidence Act.
18. A similar case to the present one came up for consideration in Gopalakrishna Pillai v. Meenakshi Ayal, : AIR1967SC155 . That will was attested by two persons. But the propounders relied only on the testimony of one of them for proof of the execution and attestation of the will. That attestor who was examined as a witness stated that as he was passing by he was invited inside the house and was requested to attest the will. The witness read it aloud and the testatrix acknowledged to him that she had affixed her thumb impression on the will. He then put his signature on it and he left. The other attestor was one of the two who actually called him into the house and was also present when the witness attested the document. In his chief examination the witness did not say anything about the attestation by the other attestor. In cross-examination he, however, added that after he signed, the other attestor wrote certain words on the will and put his signature. He added that the other attestor was saying and writing something on the will, but the witness did not actually see the other attestor writing or singing. On the basis of this evidence the Supreme Court came to the conclusion that the attestor, who was the witness, did not see other attestor putting his signature on the will and thus upheld the High Court's view that the propounders failed to prove the signature of other attestor or the attestation of the will by him. Then, the Supreme Court observed that:
'On this ground alone we must hold that the will was not proved.'
This case is on all fours with the case before me, because P. W. 1 had stated that along with the testator the other attestor also took him to the place where the will was written. Excepting this P. W. 1 does not say anything more about the part played by the other attestor. Therefore, it must follow that proof as required under Section 68 of the Evidence Act, of the attestation is not available in the case.
19. In Roda Farmroze v. Kanta Varji vandas, AIR 1946 Bom 13 a Division Bench of the Bombay High Court held that Section 68 of the Evidence Act does not say that a document required to be attested by two witnesses shall be proved by the evidence of one of them. All that the section provides is that such a document shall not be accepted in evidence unless the evidence of at least one of the attesting witnesses is called. Section 63(c) of the Succession Act requires that the will should be attested by two or more witnesses. The combined affect of the two provisions is that the profounder has got to prove 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 Section 63(c). If two attesting witnesses have signed in each other's presence, it is not necessary to examine both of them to prove that they had received acknowledgment from the testator. But, if as allowed under Sec. 63 the attestation to the testator's signature were not made at the same time, it is necessary to prove that both the persons, who put down their attesting signatures on different occasions, had done so on the acknowledgment of the testator. Accordingly, where a will duly signed by the testator was attested by two witnesses not in the presence of each other but at different times on the acknowledgment by the testator of his own signature, the evidence of one of the attesting witnesses is not sufficient to prove execution of the will. Since P. W. 1 did not depose that the other attestor also attested in his presence, the proof of the other attestation is not available from the evidence on record. So, there is no proof in the case before me of the two attestations.
20. Wanchoo, C. J. observed in Smt. Umbra v. Bakshi Gopal Bux. AIR 1957 Raj 180 that :
'Even though the witnesses who signed as attesting witnesses do not prove the attestation in the manner provided by law, the available who still be proved if two witnesses are available who fulfil the requirements of the law as to attestation. Thus even the scribe or the Sub-Registrar when the will is presented for registration, can serve as attesting witnesses. But, it cannot necessarily be presumed from the fact that the signature of the scribe appeared at the end of the document that he must have signed in the presence of the testator .'
In the case on hand neither the scribe nor the registering officer was examined.
21. This leads me to the contention of the learned counsel for the respondents that the Registrar himself can be considered as an attesting witness. Reliance was placed on Makhan Mal v. Pritam Devi, and E. B. Souza v. J. F. Souza, : AIR1958Cal440 . But, it those two cases the Registrar was examined as a witness and he spoke to the fact that the testator signed or affixed his thumb mark in the presence of the witness. But, such is not the case here. The Registrar was not examined.
22. Reference was made to a decision in R. Kameswara Rao v. B. Suryapraksarao, : AIR1962AP178 where at the time of the registration of the will, the Registrar certified that the testator admited execution and affixed his thumb impression and his signature could not be affixed because of the testator's physical incapacity. It was also certified by the Registrar that the testator was duly identified. This endorsement was held admissible to prove execution. This decision does not help in the proof of attestation of the will, nor in fact that the same attestors figured as identifying witnesses before the Registrar helps the profounder. In any case, there is no certificate by the Registrar that the attestors had admitted to him of having attested the will.
23. It was then argued that there was no specific issue relating to this question. But, the first question framed is whether the plaintiff was entitled to the declaration and possession of the plaint schedule property. The very basis of the plaintiff's claim is the will and so the plaintiff produced one of the attestors in proof of the will and both the courts proceeded to consider whether the execution and attestation of the will was properly proved or not. Therefore it is futile to argue that no separate issue in this regard was framed.
24. Lastly, learned counsel for the respondent tried to point out that there was no suspicious circumstances surrounding the will and further the will was registered. Under these circumstances the evidence of P. W. 1 and the registration endorsement should be taken as sufficient proof as required by Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act. Reliance was placed on H. Venkatachala v. B. N. Thimmajamma, : AIR1959SC443 . Onus of proof of execution and attestation is on the profounder. If there are any suspicious circumstances it is part of the onus of the profounder to remove those suspicions. Registration cannot take the place at due attestation of the document as per the provisions of S. 63(c) of the Succession Act. The Supreme Court in : AIR1959SC443 laid down in dealing with the proof of wills that the Court will start on the same enquiry as in the case of the proof of documents. The profounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the Court will start on the same enquiry as in the case of the proof of documents. The profounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document of his own free will. If the will is surrounded by suspicious circumstances it is his duty to remove those suspicious also. The test is whether the judicial conscience of the Court is satisfied in determining the question as to whether an instrument produced before the Court is the last will of the testator. It must be satisfied that the will had been validly executed by the testator who was no longer alive. This decision does not say anything specifically on the proof of attestation .
25. The same thing has been reitrated by the Supreme Court in Pushpavathi v. Chandraja, : AIR1972SC2492 .
26. The above consideration of the law on the point leaves no alternative but to hold that there is no proof in the case of due attestation of Ex. A-1 as required by Section 68 of the Evidence Act read with Section 68(c) of the Indian Succession Act. I am, therefore, constrained to reverse the decision of the lower appellate Court and confirm the decree and judgment of the trial Court.
27. In the result, the second appeal is allowed and the suit of the plaintiff is dismissed. Having regard to the fact that the Appellant is succeeding on this technical ground, despite the findings against him on the questions of fact, I direct the parties to bear their own costs throughout. No leave.
28. Appeal allowed.