1. This is an appeal against an ordER passed by the learned District Judge, Karnal, at Rohtak sitting on the probate side refusing to grant Letters of Administration with the Will annexed for want of proper attestation as required by law.
2. The testator was one Jowala Parshad who made a Will on the 27th of July, 1943 in favour of his younger son Onkar Parshad. This Will was executed at Delhi and is marked Ex. P. 1. The Will is scribed by Sham Lal P. W. 1 and purports to have been attested by Jagdish Parshad P. W. 2 and Dr. P. D. Bharge. Jowala Parshad died on the 21st of October 1943, at the age of about 73. Before this will was written there was a separation between the father and the sons and each one of them had received his share of the family property. The learned District Judge found that the Will is not proved because the provisions of Section 63 of the Indian Succession Act have not been complied with.
3. In appeal Mr. Fakir Chand Mltal submitted that the Will must be taken to have been attested by Jagdish Parshad whose attestation has been held valid by the Court and by Sham Lal p. W. 1, the scribe. I am unable to agree with Mr. Mital's submissions. In the first place, the attestation of Jagdish Parshad P. W. 2 does not appear to be in accordance with the provisions of Section 63 of the Succession Act. In the evidence of Jagdish Par-shad there is no suggestion that the Will was attested by him, in the presence of the testator, although he does state that the testator signed it in his presence.
4. The next attesting witness, who, according to Mr. Mltal, is a witness within Section 63 of the Succession Act is Sham Lal P. W. 1. He is the scribeof the Will. After the Will and before the signatures he has written as follows :
'Dated 27th July, 1943, in the hand of Sham Laldeed-writer at Delhi, deed No. 337. The subject-matter of the Will has been read out to the testator and has been understood by him.'
Before this writing, there is the signature of Jewala Parshad and his thumb-mark and the attestations of Jagdish Parshad and P. D. Bharge. Sham Lal P. W. l does purport (sic) to be an attesting witness. The law has been summed up on the question of attestation of Wills in the following words by Sen Gupta in his Indian Succession Act at p. 70:
'In order to make valid attestation, the signature of the witness must have been affixed 'animo attestandi'. In other words, they must subscribe the Will as witnesses and not in any other character. ** *. where a Will was written and signed by the testator and subscribed by one witness and, on the next page an inventory was written to which three names were subscribed, these names were held to be not placed 'animo attestandi. * * * . Attestation presupposes signature and the attesting witness must have placed his signature after he has seen the testator sign as evidence of such execution.'
In the present case the scribe Sham Lal P. W. 1 does not purport to be an attesting witness. He is nothing more than a scribe and the case seems to fall within the rule laid down by their Lordships of the Privy Council in 'Shiam Sundar Singh v. Jagannath Singh', 32 Cal WN 305, where the sons of the testator signed the Will to signify their assent but not to attest the Will. This was held merely as act of expressing consent to the bequest made therein and not as attesting witnesses of the Will as required by the Indian Succession Act. In a Patna case, 'Bulaki Mahaton v. Mt. Dulia', AIR 1941 Pat 368, the signatures of a scribe who merely said that he had read over the contents of the document to the executant and did not purport to be an attestation as a witness of the Will was held not to be sufficient attestation as required by law.
5. In an English case ' IN THE GOODS OF WILSON', (1866) LR 1 P&D; 269, it was held that a testamentary paper is not entitled to probate, unless the Court is satisfied that the names of the alleged witnesses were subscribed on it for the purpose of attesting the testator's signature. Sir J. P. Wilde, who delivered the judgment observed:
'The 9th section of the Statute of Wills prescribes how a testator is to execute a Will; and that the witnesses shall attest and subscribe the Will in the presence of the testator. Now, from this it is plain that in order to make a good execution the witnesses must have attested and subscribed the Will. They must attest the signature of the testator to the Will. It is said that the position of the names of the witnesses is immaterial, provided they are ha such a position as to show that they were placed there for the purpose of attesting the Will. In considering whether persons have subscribed a Will as attesting witnesses the portion of the signatures may be most material. If they are written under an attestation clause no difficulty aries, but if they are placed elsewhere their portion may be important because if they are placed under a particular clause or statement 'the inference is that 'prima facie' they were put there to give effect or to testify to the words of the clause or statement.'
There the signatures of the alleged attesting wit-nesses which were on the next page were held not to be for the purpose of attestation because of their position.
6. The learned Advocate for the appellant has relied on a judgment of the Lahore High Court in ' Parshotam Ram v. Kesho Das', AIR 1945 Lah 3 where the attestation of a Sub-Registrar and of the person who identified the testator before the Registrar were held to be sufficient attestation. It is not necessary for me to decide that question here, because I find that a Division Bench of this Court has, in another case, agreed with this view. The question in the present case is whether Sham Lal has, purported to act as an attesting witness. After going through the evidence and looking at the place where Sham Lal has put his signature, I am satisfied that he was not acting as an attesting witness.
7. I have held already that jagdish Parshad's evidence does not satisfy the requirements of Section 63 of the Indian Succession Act. Besides there is a great deal of contradiction between the witnesses as to the time and place of execution of the Will. Personally I am very doubtful as to the execution of the Will itself, and it is unnecessary for me to go into this matter.
8. I am, therefore, of opinion that this appealis without any force and must be dismissed. Therespondent will have his costs here and in theCourt below.