B.K. Patra, J.
1. This is an appeal against the judgment of the Subordinate Judge, Balasore dismissing an application filed by the appellants under Section 276 of the Indian Succession Act praying for granting to them probate of the Will dated 21-1-1961 alleged to have been executed in their favour by one Krushnamoni Sahu. Krushnamoni Sahu was the widow of one Kailas. Appellant No. 2 Snehalata is the daughter of Kailas and appellant No. 1 Harischandra is the husband of Snehalata. Kailas had a son Baidyanath who predeceased him. The Respondents are two sons and the daughter of Baidyanath. Krushnamoni died on 23-5-1962 in Balasore hospital. It is the case of the appellants that more than a year before her death she had executed the disputed Will Ext. 1 under which she had bequeathed her entire interest which she had described as 1/3rd in favour of the appellants. Admittedly, no disposition was made in favour of the respondents. . The respondents in their written statement contended that the testator was an illiterate and rustic lady and was continuously ailing for two years before her death and on that account had lost her balance of mind. Appellant No. 1 who was looking after properties after the death of her husband, had apparently managed to take the thumb impression of Krushnamoni on some blank papers and had fabricated the alleged Will thereon. According to the defendants, therefore, the Will is a forged one and was never executed by Krushnamoni.
2. In support of the application, the appellant No. 1 examined himself and two other witnesses, namely, one of the attestors and the scribe of Ext. 1. The other attestor was admittedly dead by the time the suit was tried. The respondents examined two witnesses on their behalf.
3. After considering the evidence on record the learned Subordinate Judge held that appellant No. 1 after obtaining thumb marks of Krushnamoni on some plain papers had fabricated the alleged Will after her death and obtained the signature of the attestors thereon. In view of this finding he dismissed the application.
4. Admittedly after the death of Krushnamoni's husband appellant No. 1 began to look after her properties and he was doing so till her death in 1962. The testator was more than 60 years old at the time when she is alleged to have executed the Will and we have the evidence of P. W. 1 that she was old and weak because of age and illness. Krushnamoni was living in a village different from the one where the appellants were residing. The Will was not executed at thetestator's house but was executed in the house of the appellants in the latter's village. It is, therefore, that none of the neighbours of Krushnamoni had attested the Will. The Will was scribed by one Mahendra Prasad Das, a pleader's clerk and he admits that he had worked as a Moharir for appellant No. 1 in several Bhagchas cases. Although appellant No. 1 has stated that it is Krushnamoni who had sent for the scribe and the attestors, P. W. 3 the scribe has admitted that two days before the execution of the Will, it is appellant No. 1 who had asked him to go to his house on the appointed date to scribe the Will.
Having regard, therefore, to these circumstances, there cannot be any doubt that appellant No. 1 had taken a very prominent part in the matter relating to the execution of the Will, assuming for a moment that the Will was actually executed by Krushnamoni. Added to these circumstances, there is the fact that the entire interest of Krushnamoni in the family properties has been bequeathed to the appellants under the Will and that her own grandsons have been completely excluded therefrom. These are all circumstances which arouse the suspicion of the Court that it does not express the mind of the testator and it is therefore the duty of the propounder of the Will to remove such suspicion. No explanation whatsoever has been offered as to why instead of executing the Will at her own house Krushnamoni came all the way to the house of the appellants to execute it. There is evidence to show that Krushnamoni's neighbours in her own village are all respectable persons including some highly placed retired Government servants. The appellant's village is very near Balasore where there is a sub-registration office. Knowing fully well that the Will was being executed by an old and sickly lady and that under the Will she was bequeathing all her properties in favour of the appellants, the latter could have taken the precaution of getting the Will registered, but that has not been done.
The learned Subordinate Judge has with reference to the writings of the Will remarked that in the first page of the Will the scribe has allowed much space between the lines and gradually the said' space between the lines has become narrower. Again in the last page of the Will the scribe has appended a certificate in small letters and the space between the lines is narrow. From these circumstances he has concluded that the manner of writing gives the impression that after thumb marks were taken on some plain paper, the Will has been fabricated thereon taking care to fill up the contents within the space circumscribed by the thumb impressions which were already on the papers. After examining the document I feet that the comment is not unjustified. Taking an over-all view of the evidence and the circumstances of the case I agree with the conclusion arrived at by the learned Subordinate Judge that the appellantshave failed to establish that the Will is a genuine one.
5. The judgment in this case, however, need not rest on the above conclusions because even assuming that the Will is genuine its execution has not been properly proved. Section 63 of the Indian Succession Act 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 marks 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 for him, has to appear at a place from which it would 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 marks to the Will, or must have seen some other person signing 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.
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 an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Thus Section 68 makes an important concession to those who wish to prove 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 of the Evidence Act permits the execution of the Will to be proved by only one attesting witness being called. But that attesting witness must be in a position to prove the execution of the Will.
6. In this case, of the two attesting witnesses, one was admittedly dead by the time this case came up for trial and the other, attesting witness was examined as P. W. 1. His evidence regarding execution of the Will may be quoted :
'I knew Krushnamoni Sahu. She executed a Will which I know. That Will was scribed by Mahendra Prasad Das under the instruction of Krushnamoni Sahu. After the Will wvas scribed, the contents of it were read over and explained to the executant and she executed the Will by putting her thumb mark. I and late Motilal Bardhan were present, when the Will was scribed and executed. Ext. 1 is the said Will and Ext. 1/a and Ext. 1/b are the signatures of attestingwitnesses viz; myself and Dr. Motilal Bardhan.'
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 Indian Succession Act. Although P. W. 1 has not specifically stated as required by Section 63 that he and the other attesting witness had seen Krushnamoni putting her thumb mark on Ex. 1, his statement that he and the other attesting witness were present when Krushnamoni executed the Will by putting her thumb mark may be construed to mean that both of them saw her putting the thumb mark. But P. W. 1 has nowhere said that each of them had signed the Will in the presence of the testator. This is a very serious lacuna in the evidence of the only attesting witness that was examined in this case. Doubtless this omission has been supplied by P. W. 2 (appellant No. 1) and P. W. 3 (the scribe of Ext. 1) P. W. 2 has deposed:
'After the Will was scribed, it was read over and explained to the executant and the executant put thumb marks on it, Motilal Bardhan, Bikram Mishra have seen Krushnamoni. executing the Will produced by me. The witnesses signed it in presence of executant who put her thumb mark in their presence.'
P. W. 3 the scribe has deposed--
'I wrote the will in presence of witnesses and the executant and after it, I read it over and explained the contents of the same to her and then she put her thumb mark, on the will in due execution of the deed. Dr. Motilal Bardhan and Bikram Mishra attested the Will there in presence of the executant.'
It is argued by Mr. L. K. Dasgupta ap-pearing for the appellants that the evidence of appellant No. 1 and the scribe can supplement the evidence given by the attesting witness, and the evidence of the three wit-nesses read together proves the due execution of the Will. Tn support of this contention he has relied on Section 71 of the Evidence Act. That section 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 safeguard introduced by the Legislature to the mandatory provisions of Section 68 where it is not possible to prove execution of the Will by calling the attesting witnesses though alive. Section 71 can be availed of only when the attesting witnesses who have been called failed to prove execution of the Will by reason of either denying their own signatures or denying the signature of the testator or having no recollection as to the execution of the document. It has no application when an attesting witness fails to prove the execution of the Will. The difficulty with the evidence of P. W. 1 is that he spokeonly about a part of the execution of the document and failed to depose about all the other formalities which go to constitute the execution of the Will.
I am unable to accept the contention of Mr. Dasgupta and he has cited no authority in support of his submission that where the 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, his evidence can be supplemented by the evidence of other witnesses who are not attesting witnesses. The whole principle underlying Section 68 of the Evidence Act is that the 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 execution of the Will. It is a con-cession which 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, if he is available. The position would have been different if none of the attesting witnesses was available. Provision for such a contingency is made in Section 69 of the Evidence Act which says that if no such attesting witness can be found, execution of the document can be proved by leading evidence to show that attestation by one attesting witness is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
7. Mr. Dasgupta drew my attention to a decision of the Supreme Court in Naresh Charan v. Paresh Charan. AIR 1955 SC 363. In that case, the two attesting witnesses stated in examination-in-chief that the testator signed the Will in their presence and that they attested his signature. They did not add that they signed the Will in presence of the testator. It was contended that in the absence of such evidence it must be held that there was no due attestation. Rejecting this contention their Lordships held that it cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the Will in the presence of the testator, there was no due attestation. It will depend upon the circumstances elicited in the evidence whether the attesting witnesses signed in presence of the testator. It would however be noticed that although the attesting witnesses in that case did not specifically say that they signed the Will in presence of the testator, they did say that they attested his signature. But in the present case, the sole attestor P. W. 1 did not even say that he and the other attesting witness had attested the document. His evidence, as already pointed out, only goes to this extent that he and the other attestor were present when Krushnamoni put her thumb mark in the Will. The facts of this case therefore are distinguishable from the Supreme Court case referred to above.
8. In the result, I find no merit in this appeal which is accordingly dismissed with costs.