1. In this second appeal against the judgment and decree of the Senior Sub-Judge, Ludhiana, exercising enhanced appellate powers, the sole point for determination is whether due execution of the Will propounded by Piara Singh defendant-respondent stands proved.
2. The relevant facts of this case are that Bakhtawar Singh was owner of the land in dispute. He died issueless and without leaving a widow on April 27. 1970. Udhe Singh and Inder Singh plaintiffs and Piara Singh defendant are his. brothers. Inder Kaur. plaintiff is their sister. Plaintiffs brought a suit claiming possession of.3/4th share in the land by succession as heirs of Bakhtawar Singh. They denied the execution and validity of a Will propounded Piara Singh defendant alleged to have been executed by Bakhtawar Singh bequeathing the whole land to him. It is said that Piara Singh is entitled to only 1/4th share in the land by inheritance. The suit was resisted by Piara Singh reiterating thc genuineness of the Will executed in his favour by Bakhtawar Singh. The trial Court held that execution and, genuineness of the Will have not been established and consequently decreed the plaintiffs' suit. The first appeal filed against this decision of the trial Court by Piara Singh was allowed by the lower appellate Court holding that the execution of the Will as well as its validity have been proved: On.this finding the plaintiffs suit was dismissed.
3. It may be mentioned here that before filing of the instant appeal Udhe Singh plaintiff died and his son Labh Singh filed this appeal along with the other two plaintiffs Inder Singh and Inder Kaur. During the pendency of the appeal the plaintiffs Inder Singh and Inder Kaur as well as defendant Piara Singh died and their legal representatives were brought on record.
4. The disputed Will. bears the name of Nachhattar Singh and Hamir Singh as attesting witnesses,. Hamir Singh, though alive, was not produced in the witness-box to support the execution of the Will.. Nachhattar Singh stepped into the witness-box as DW 3 but he failed to supposed the will. He stated that he has no knowledge about the execution of such a Will. As none of the attesting witnesses had name forward to prove execution of the Will, the trial Court held that its execution has not been Proved. The trial Court also doubted the genuineness of the Will because although it was recited that Piara Singh had been rendering service to the testator, but no evidence has been produced to prove this fact. The trial Court was, therefore, of the view that there appeared to be no, good reason for Bakhtawar Singh to have excluded his other brothers in inheritance, The lower appellate Court took the view that the Sub-Registrar Hardip Singh (D.W. I) who had registered the Will, can be considered to be en attesting witness of the Will and two, his testimony the execution of the Will agenda proved. 1t was also observed that no circumstances lee existed from which the genuineness of the Will may be doubted. The vital point for consideration is whether the view taken by the lower appellate Court is sustainable.
5. Therefore me the learned counsel for the parties addressed arguments in the' suspect of the execution of the Will only. It was not contended by the learned counsel for the appellants that even if the Will is found to be duly executed It could not be considered genuine testamentary disposition of the properly I will, therefore confine myself to thc question of due execution of the Will.
6. It appears proved from the testimony of the Sub-Registrar that the testator had acknowledged his thumb mark on the Will at the time of registration. However, as held by the Supreme Court in Moonga Devi v. Radha Ballab, 1972 Cur LJ 717: (AIR 1972 SC 1471), it is not merely the genuineness of signature a or mark of the testator on which the proof of the execution of the Will under Section B3 of the Succession Act depends. It has to be proved that the will was attested in accordance with Cl.(c). of that section This clause reads as follows:
'63 (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 the signature of such either 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 shell be necessary.'
The execution of the Will is to be proved within the four-corners of the aforesaid clause and the law requires strict compliance of this provision of law. Thus. before execution of a Will is considered to be proved the Court has to satisfying himself that the Will was attested by two or more witnesses each of when had either seen. the testator sign or affix his' mark to the Will or had received from the testator a personal acknowledgment of his signature or mark. Each of the witnesses must also sign or affix his mark on the will in the presence of the testator. As to what are essential conditions of a valid attestation on a document was considered by the Supreme Court in M. L. Abdul Jabbar Sahib v. H. Venkata Sasfri and Sons, AIR 1969 SC 1147. It was held that to attest is to bear a witness to the fact. Briefly put, the essential conditions of a valid attestation are:
(1) Two or more witnesses have seen the execution sign the instrument or have received from. him a personal acknowledgement of his signature;
(2) With a view to attest or to bear witness to this fact each of them has signed the instrument of the executant. in the presence the requirement of Clause (c) of Section 63 of the Succession Act.
It was observed that it was essential that the witness should have put his animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e. g., to certify that he is a scribe ur an identifier or a registering officer, he is not an attesting witness. So far as the role of registering Officer is concerned it was had in this judgment that the Registration Act, 1908 lays down a detailed procedure for registration of documents The registering Officer is under u duty to enquire whether the document is executed by the person by whom it proportion have been executed and to satisfy himself as to the identity of the executant. He can register the document if he is satisfied about thc identity of the person executing The same and if that person admits execution. The signatures of the executant and of every person examined with reference to the document are endorsed on the document. The registering Officer is required to affix the date and his signature to the endorsements. The Supreme Court held that prima facie, the registering Officer puts his signature on the document in discharge of his statutory duty under Section 59 of the Registration Act and not for the purpose of attesting it 'r certifying that he has received from the executant a personal acknowledgment of his signature.
7. In the present case it is important to ascertain if the disputed Will was attested in accordance with Clause (c) of Section 63 of the Succession Act. For this purpose only the statement of once attesting witness can be taken into consideration. As mentioned earlier only Nachhattar Singh one of the attesting witnesses was examined by the propounded of the Will and he failed to support the execution of the Will. The other person named in the Will as the second attesting witness i. e. Hamir Singh was not produced. I am then left with the statement of the registering Officer Hardip Singh D.W. 1 and it is to be considered whether he can be deemed to be an attesting witness of the Will and if so whether his testimony satisfies
8. It has been noticed above that the registering officer cannot be regarded as an attesting witness if he had not appended his animo aftestandi, i. e., for the purpose of attesting the fact that he had seen the executant sign or had received from him a personal acknowledgment of his signature. He should also sign the endorsement of registration in presence of the testator. This point arose for determination before a single Bench of this Court in Naranian Singh v. Parsa Singh, 1991 Cur LT I95. In that case the endorsement by the Sub-Registrar on the Will indicated that contents of the documents were read over to the testator who had accepted the same and admitted that he had executed the Will, The Sub-Registrar also signed the endorsement. It was held that in view of the language of the endorsement. and the fact that the testator put his thumb impression thereon in the presence of the Sub-Registrar who also signed the endorsement, the.Sub-Registrar also became an attesting witness of the Will in question. In other words the registering Officer had suspended his attestation animu aftestandi. The present case is of a similar nature. The Sub-Registrar Hardip Singh D.W. 1 testified that he had read over the Will to the testator who admitted having executed the same The endorsement,was then thumb-marked by the testator and signed by the Sub-Registrar. It will be reasonable to gather from these circumstances that the Sub-Registrar had not merely registered the Will normally but had appended his attestation for the purpose of attesting the fact that the testator had personally acknowledged his thumb impression the document. Since the testator affirmed the contents of the Will and put his thumb impression' on the endorsement in the presence of the Sub-Registrar, therefore, the Sub-Registrar can also be considered to be an attesting witness of the Will. However this fact alone does not prove the compliance of Clause (c) of Section 63 of the Succession Act, In order to satisfy this provision of law the propounded of the Will has to prove attestation of at least two witnesses each of whom had seen the testator sign of mark the Will or had received his personal acknowledgement of his signatures or mark and each of them should have signed:or,marked. in presence. of the testator. The testimony. of the. Sub-Registrar may be sufficient to prove attestation of the Will by one witness. but.... it does not establish the attestation of the second witness..There is no evidence on, the record that either.Nachhattar Singh or Ranvir Singh. named as attesting witnesses on the Will had actually seen the testator thumb-marking the Will or had himself put ups thumb impression ' in presence of the testator. The Sub-Registrar evidently. was not present' when the Will,was excited and he, therefore could not.. say if any: either person. hail attested the Will meeting with the requirements o S.. 63 of the Succession Act. The judgment in' the case' of Niranjan Singh.(Supra) relied' upon by the 'learned lower appellate Court to arrive at a finding in respect of the due execution.of 'the Will is inapplicable to the acts. of thus case In that case the Sub-Registrar was taken to. be an attesting witness of.the Will and there was ' also evidence of another attesting. witness who had signed that the testator had signed the Will in his' presence and that he also put. his' signatures.on the will in the testators presence. It is in such circumstances that in view of-the Will having been attested by two witnesses it was Considering that there had being sufficient compliance with the provisions of Section 63 of.(he Succession Act. In the present' case the attestation of the Will be only one witness has' been proved which certainly. cannot be taken to satisfy the mandatory provisions of Section 63. An error of lavi has;' therefore, been plainly committed by the lower appellate Court by' considering the execution of the Will proved merely oh the testimony of the registering Officer. In this view that the matter the execution of the impugned. Will is not considered to be proved and as such the decision of the lower appellate Court cannot be sustained.
9. For the aforesaid reasons this appeal.is allowed, the judgment and decree of the lower appellate Court are set aside and those of the trial Courts are restored.. There will be no order,as ' to costs.,
10. Appeal allowed.