T.C. Raghavan, J.
1. Kamppan alias Devarajan, the brother of the plaintiff, first 'married the 1st defendant; and he executed two mortgages in her favour. Subsequently he married the 8th defendant, the daughter of the 7th defendant, and begot the 9th defendant. He executed a will bequeathing his properties in moieties to the 8th and 9th defendants and the 7th defendant respectively. A few months after he cancelled that will and executed another will, whereby he bequeathed half of his properties to the 8th and 9th defendants and the other half to the plaintiff. A few days thereafter he died; and subsequent to his death, the plaintiff filed the suit for redemption of the two mortgages in favour of the 1st defendant. The 1st defendant raised several objections; but both the lower Courts decreed the suit for redemption. The 1st defendant comes up in second appeal.
2. One of the questions mooted before the lower Courts as well as before me is whether the 1st defendant was validly divorced. Before the lower appellate Court the 1st defendant's counsel appears to have agreed that that question need not be considered in this case. Another question raised before the lower Courts is whether Devarajan had the right to dispose of all his properties by will. On that question the lower appellate Court held that Devarajan had the right, subject to the right of maintenance of the 1st defendant, if any. That finding also is not disputed. The remaining questions for adjudication are whether the will, Ex. A-1, is not valid for the reason that it is not properly attested as required by law; and whether the appellant is entitled to further value of improvements, in case she is to be redeem. ed.
3. There are two attesting witnesses to the will and the will is also registered. Pw. 3 is one of the attesting witnesses; but he deposes that he did not see Devarajan sign the will and that he attested the will at the request of the plaintiff on being satisfied that the signature in the will was that of Devarajan and even that he did, not in the presence of Devarajan. Section 63 of the Indian Succession Act provides that a will shall be attested by two or more witnesses, each of whom has seen testator sign or affix his mark to the will; and that each of them shall sign the will in the presence of the testator. The evidence of Pw, 3 does not establish proper attestation as provided in this section. The other attesting witness is not called, because, according to the plaintiff, he is a teacher in a school run by the 1st defendant and therefore he is not likely to give evidence fairly. The complaint against Pw. 3 by the plaintiff is also the same.
4. Under Section 68 of the Indian Evidence Act, 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 one is available.
In this case that requirement is complied with; and in such a case, Section 71 of the Evidence Act provides that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. Therefore, if there is other evidence available that the attesting witnesses signed the will in the presence of Devarajan when Devarajan himself signed the will or acknowledged his signature. Section 71 would have been complied with and the will proved, But there is no such evidence. Even the plaintiff as Pw. 2 does not say that he saw the attesting witnesses sign the will in the presence of Devarajan when Devarajan himself signed or acknowledged his signature.
5. The will, as already stated, has been registered. Pw. 1 is the Sub-Registrar who registered the will at the House of Devarajan. He deposes that Devarajan acknowledged the execution of the will and signed in his presence, whereupon he made the registration endorsement and also signed in the presence of Devarajan. He further says that the identifying witnesses also signed in the presence of Devarajan as well as himself. The lower courts have relied on this evidence and have treated the Sub-Registrar as an attesting witness. The main question argued before me is that the lower Courts should not have done this.
6. On this question there is difference of opinion among the several High Courts in India, A Full Bench of the Madras High Court held in Veerappa Chettiar v. Subrahmany Ayyar, AIR 1929 Mad 1 (FB) that the signatures of the registering officer and of the identifying witnesses affixed to the registration endorsement were sufficient attestation within the meaning of the Transfer of Property Act. In this decision the learned Judges did not discuss the question in an detail, but merely gave their conclusion. In Radha Mohun Dutt v. Nripendra Nath Nandy, AIR 1928 Cal 154 a Division Bench of the Calcutta High Court expressed the same opinion. In Sind also it was held in the Division Bench ruling in Thakurdas v. Topandas AIR 1929 Sind 217 that the writer of a mortgage document who deposed that after he had written the document the executant admitted the contents of the deed and signed it and the Sub-Registrar who authenticated the mortgage deed after the executant had acknowledged his signature were both attesting witnesses within the meaning of Section 3 of the Transfer of Property Act.
In Sarada Prasad Tej v. Triguna Charan Ray, AIR 1922 Pat 402 a Division Bench of the Patna High Court held that the Sub-Registrar before whom the testatrix admitted the execution of a will was an attesting witness. In Ganpatrao Yadorao v. Nagorao Vinayakrao, AIR 1940 Nag 382 the Nagpur High Court also expressed the view that a Sub-Registrar who signed a will in the presence of the executant after receiving from him an acknowjedgment of execution was an attesting witness. The Rajasthan High Court held the same view regarding a will in its Division Bench ruling in Smt. Umrao v. Baksjii Gopal Bux, AIR 1957 Raj 180. The Punjab High Court in its recent Division Bench ruling in Makhan Mal v. Mst. Pritam Devi, AIR 1961 Punj 411 gave the same opinion regarding a will. The Calcutta High Court reiterated the same opinion regarding a will in its recent Division Bench ruling in Earnest Bento Souza v. Francis Souza, AIR 1958 Cal 440.
7. On the other hand, we have the decisions of the Allahabad, the Bombay and the Rangoon High Courts and the Chief Court of Oudh. In the Full Bench decision of the Allahabad High Court in Lachman Singh v. Surendra Bahadur Singha, AIR 1932 All 527 (FB) it was held that the signatures of the Sub-Registrar and of the identifying witnesses were not sufficient attestation of a deed for the purposes of the Transfer of Property Act, even assuming that the Sub-Registrar and the identifying witnesses did receive from the executant a personal acknowledgment of his signature or mark and that they did sign in the executant's presence. The Division Bench ruling of the Bombay High Court in Thimmawa Dundappa v. Channava Appaya, AIR 1948 Bom 322 took the same view that the signature made by the Sub-Registrar while he made the endorsement on the document admitting it to registration and the signatures of the identifying witnesses made by them when they identified the executant before the Sub-Registrar could not be regarded as the signatures of attesting witnesses.
The Rangoon High Court also expressed the same opinion in its Division Bench ruling in Ma Thein Shin v. Ma Ngwe Nu, AIR 1939 Rang. 211. The learned Judges held that the Sub-Registrar and the identifying witnesses at registration were not attesting witnesses under Section 3 of the Transfer of Property Act. And lastly, a Division Bench of the Chief Court of Oudh considered the question in Mt. Chandrani Kuar v. Lala Sheo Nath, AIR 1931 Oudh 146, a case arising under the Transfer of Property Act, and held that the signatures of the Sub-Registrar or the identifying witnesses on the registration endorsement could not constitute them as attesting witnesses.
8. These are the main decisions cited before me. Section 3 of the Transfer of Property Act defines the term 'attested'; and Section 63(c) of the Indian Succession Act provides as to how a will shall be attested. These two provisions are practically the same.' After an analysis of the decisions enumerated hereinbefore, what I find is that the Allahabad. Bombay and Rangoon High Courts and the Chief Court of Oudh take the view that the Sub-Registrar and the identifying witnesses at registtation are not attesting witnesses under Section 3 of the Transfer of Property Act; whereas, the other High Courts take the view that the Sub-Registrar and the identifying witnesses are attesting witnesses under Section 3 of the Transfer of Property Act and also under Section 63(c) of the Indian Succession Act. In short, there is no decision among the authorities cited above, wherein any High Court has taken the view that the Sub-Registrar and the identifying witnesses are not attesting witnesses under Section 63(c) of the Indian Succession Act.
In fact, the decision of the Allahabad High Court in Lachman Singh's case, AIR 1932 All 527 (FB) gives, according to me, a clue to the decision of this question. In that decision arising under the Transfer of Property Act Mukerji, J. who spoke for the Court points out some difficulties in accepting the Sub-Registrar and the identifying witnesses as attesting witnesses in a case under the Transfer of Property Act. The learned Judge points out that a sale deed, a mortgage deed, etc., coming under the Transfer of Property Act, becomes complete only if three essentials are there, namely, the signature of the executant, attestation by at least two witnesses and registration of the document. Otherwise, the document is not complete. In other words, the last of the requirements, namely registration, is essential to make the document complete, Mukherji, J. points out that in such a case if the Sub-Registrar and identifying witnesses can be treated as attesting witnesses, then a document which under the law has to be attested by at least two attesting witnesses and registered can be validated by mere registration even if it is not attested.
The learned Judge also points out that in a case where the Sub-Registrar knows the executant registers a document which is not attested by any witness at all and the document is attested by another witness subsequent to registration, even then the document would be one properly attested and registered. Lastly, Mukerji, J. again points out the distinction between a document compalsorily registrable and another like a will not required by law to be registered.
9. In the Bombay case Gajendragadkar, J. (as he then was) who delivered the judgment of the Court follows the Allahabad ruling. This case also arose under the Transfer of Property Act; and the question whether the Sub-Registrar and the identifying witnesses signed as witnesses or not is material in such a case where registration is compulsory under the law, whereas, that question loses it significance in a case where registration is not essential for the completeness or validity of the document.
10. In a case coming under the Transfer of Property Act, where a document becomes complete and valid only on registration, the Sub-Registrar and the identifying witnesses at registration may not become attesting witnesses. But in a case where the document is a will which does not require registration, the Sub-Registrar and the identifying witnesses, if they conform to the law regarding attestation, may become attesting witnesses.
11. I may now revert to the anomaly of the case pointed out by Mukerji, J. of attestation after registration. Suppose a will was executed without any attesting witness and it was also registered. As suggested by Mukerji, J., the Sub-Registrar knew the executant; and after getting an acknowledgment of his signature, the Sub-Registrar registered the will. If registration was not an essential condition of the completeness or the validity of the will, why should not the testator obtain another witness to attest the document even after its registration?'
12. One more contention has to be considered; and that is that the party who puts the signature must do it with the intention to attest the document and not with any other intention. The argument is that the Sub-Registrar and the identifying? witnesses at registration have no such intention when they put their signatures and therefore they cannot be considered as attesting witnesses. In support of this argument some decisions referred to by Gajendragadkar, J, in the Bombay decision have been brought to my notice including the two Privy Council decisions in Shiam Sundar Singh v. Jagannath Singh, AIR 1927 PC 248 and in Surendra Bahadur Singh v. Behari Singh, AIR 1939 PC 117, Whatever might be the force of this contention in a case arising under the Transfer of Property Act, I do not think that this can avail in the case of a will, which need not be registered under the law.
In the first of the Privy Council rulings mentioned above, there were attesting witnesses to the will and the sons of the testator also signed the will 'openly and palpably, with the knowledge of all present', to express consent only; and the Privy Council held that they were not attesting witnesses. The second case arose under the Transfer of Property Act; and the observation of the Privy Council that the endorsements made at the tune of registration were relevant to the matter of registration only can apply only to a case where registration is an essential requirement under the law.
13. In the result, I agree with the lower Courts and hold that the Sub-Registrar in this case is an attesting witness; and since he has been called as a witness and has also proved the execution, the will is properly attested and properly proved.
14. The next question relates to the claim for improvements by the appellant. She claims that she must be awarded value of improvements Under Act XXIX of 1958. This Act came into force in May 1958, when the appeal was still pending before the lower appellate Court; and the appellant did not raise this plea there. Having failed to take the plea before, the lower appellate Court, I do not think she is entitled to have the same raised in second appeal before me. Therefore, I reject this contention. Still, I make it clear that she is entitled to compensation for improvements effected subsequent to the date up to which compensation has been adjudged in the decree and to a re-valuation of the improvements, for which compensation has been so adjudged, when and in so far as such revaluation may be necessary with reference to the condition of the improvements at the time of eviction. I mean, she is entitled to all her rights under Section 5(3) of Act XXIX of 1958 and she may claim them in execution.
15. I confirm the decision of the lower Courts and dismiss the second appeal. I also direct the parties to bear their respective costs in this Court. Leave granted.