Judgment :- 1. The suit properties belonged to Kuriakose, the father of the plaintiff and the first defendant who died on Dhanu 7,1121, and were bequeathed by him to the plaintiff by will, Ext. P-1 (a) dated Makaram 26, 1115, which he had deposited in a sealed cover Ext. P-1 with the District Registrar, Kottayam, under the provisions of the Travancore Registration Act, 1087. On his death the properties came into her possession, but the first defendant attempted to take possession by force; she sued in O. S.346 of 1121 for injunction to restrain him from doing so, and a receiver was appointed for the properties. The suit was ultimately dismissed. She then instituted the suit out of which this appeal arises for establishing: her title to the suit properties under the will and for the recovery of the same from the receiver who was impleaded as the second defendant or from the first defendant, if he has already got into possession from the receiver. The second defendant pleaded that he had already surrendered possession to the first defendant. The latter contended that Kuriakose had not executed any will, that even the will put forward had not been duly attested and that he is in present possession as the heir of his father, and he also set up independent title to items 2 and 4. The Subordinate Judge, Kottayam, gave a decree to the plaintiff allowing her to recover possession from the first defendant who has preferred this appeal. 2. The finding of the learned judge that items 2 and 4 belonged to Kuriakose was not challenged at the hearing. Ext. P-1 (a) bears the date Makaram 26,1115, and purports to he signed by Kuriakose on all the eight pages. On the same day it was presented to the District Registrar for deposit in a sealed cover. Pw. 2 who has married one of the sisters of the plaintiff and was present at the time Ext. P-1(a) was completed at the residence, accompanied Kuriakose to the office. There, both himself and Pw.1 a document writer, identified Kuriakose before the District Registrar. On Ext. P-1 is the superscription that it is the cover of the will of Kuriakose. Both Pws.1 and 2 have deposed that Kuriakose signed Ext. P-1, which was sealed and deposited with the District Registrar. There, both himself and Pw.1 a document writer, identified Kuriakose before the District Registrar. On Ext. P-1 is the superscription that it is the cover of the will of Kuriakose. Both Pws.1 and 2 have deposed that Kuriakose signed Ext. P-1, which was sealed and deposited with the District Registrar. On this evidence, which I see no reason to distrust, there can be no doubt that Ext. P-1(a) was executed by Kuriakose. 3. But the important question in this appeal is, whether the will has been executed and attested in accordance with law. It was contended for the first defendant that Ext. P-1 (a) alone can be the will and even if Kuriakose has executed it, it has not been attested, that Ext. P-1 the cover is not a part of the will, and even if it is, Kuriakose has not executed it but has only signed it in token of presentation before the Registrar and Pws.1 and 2 have not attested it ammo attestandi but have only signed it as identifying witnesses. To this, the reply was that Ext. P-1 was so physically connected with Ext. P-1 (a) the document within, as to form part of it, that the signing of Ext. P-1 by Kuriakose amounted to the due execution and the signing of Ext. P-1 by Pws.1 and 2 amounted to due attestation, of the will. On these contentions the points which arise for consideration are whether Ext. P-1 can be deemed to be a part of the will and whether the signatures on Ext. P-1 are sufficient to constitute execution and attestation of the will. If either of these cannot be answered in favour of the plaintiff she has to fail. The will is governed by the provisions of the Travancore Wills Act, 1074, S.15 of which reads as follows: "Every testator must execute his will in writing according to the following Rules: First: 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. Second. 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. Third. Second. 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. Third. The Will shall be attested by two or more witnesses each of whom must have seen the testator sign or affix his mark to the Will, or have seen some other person sign the Will in the presence and by the direction of the testator, or 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 must 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 rime and no particular form of attestation shall be necessary". It is useful to quote also the relevant provisions of the Travancore Registration Act, 1087. S.35 provides that "any testator may, either personally or by his agent, deposit with any Registrar his Will in a sealed cover superscribed with the name of the testator and that of his agent, if any, and with a statement that it is a Will," and S.36(1) enacts that, "on receiving such cover, the Registrar if satisfied that the person presenting the same for deposit is the testator or his agent, shall transcribe in his Register Book V the superscription aforesaid, and shall note in the same Book and on the said cover, the year, month, day and hour of such presentation and receipt, and the names of any persons who may testify to the identity of the testator or his agent, and any legible inscription which may be on the seal of the cover". Rule 73 of the Rules framed under the Registration Act says how the particulars required in S.36 shall be noted on every sealed cover deposited in a Registrar's office. The relevant part may be extracted. " No. of 1095 presented at 3 P.M. on the 1st Chingam 1035 in the office of the Registrar of... (or at the residence of ...) by ... (Signature) A.B. with addition. xxx xxx xxx xxx Witnesses examined, (Signed) - E. F. (with addition) (Signed) - G. H. (with addition) (Here enter the inscription on the seal of the cover) Date Signature of Registrar. (or at the residence of ...) by ... (Signature) A.B. with addition. xxx xxx xxx xxx Witnesses examined, (Signed) - E. F. (with addition) (Signed) - G. H. (with addition) (Here enter the inscription on the seal of the cover) Date Signature of Registrar. No particular form is set by the Rules for the superscription to be made on the cover pursuant to S.35. R.45 a general rule which says how parties may be identified before the Registering officer, provides inter alia, that "... The attesting witnesses to a document need not necessarily be examined to prove the identity of parties". 4. In the light of these provisions the several endorsements and signatures on Ext. P-1 have to be examined. On the top of Ext. P-1 is the superscription, that it is the cover of the will of Kuriakose bearing the date Makaram 26,1115. Below this are endorsements which conform to the prescriptions in R.73. After giving the serial number of the deposit the endorsement is in effect: 'presented before the District Registrar's office at Kottayam, at 12-45 P.M. on Makaram 26,1115, by Kuriakose'. Kuriakose has signed against this clause. Then under the heading "identifying witnesses", are mentioned the names and addresses of Pws.1 and 2 followed by their signatures. There is a further endorsement concerning the seven seals on the cover followed by the signature of the District Registrar. The superscription and the endorsements upon Ext. P-1 together with the signatures are in accord with the provisions of the Travancore Registration Act and the Rule quoted above. According to plain reading the signature of Kuriakose on Ext. P-1 was appended in token of his having presented it, and not of his having executed a will in terms of S.15 (2) of the Travancore Wills Act, by so placing his signature "that it shall appear that it was intended thereby to give effect to the writing as a will". The question really is one of intention of the signatory and not whether the cover was so physically attached to the testamentary document within at the moment of signing as to constitute in law a part of it. In this respect, the difference between the signature on the last page of Ext. P-1(a) which is in conformity with S.15(2) and the signature on Ext. P-1, is so telling. In this respect, the difference between the signature on the last page of Ext. P-1(a) which is in conformity with S.15(2) and the signature on Ext. P-1, is so telling. In'In the Estate of Bean', (1944) 2 All E.R. 348, the testator wrote his will in a printed form, but did not sign it though the witnesses put their signatures on it. Then it was enclosed in an envelope, on the top of which he wrote his name and address. The court found it impossible to hold, that the testator had intended to give effect to the will by the writing on the envelope. It was observed that "Had it been possible here to find as a fact that the name on the envelope was put there as the signature to the will, I should have regarded the facts in this case as indistinguishable from those in 'In the Goods of Mann' (1942) 2 All E. R.193". In the latter case the attestors were present when the testatrix wrote out the paper which contained her testamentary dispositions, the attestors signed the paper, which was then put in a cover on which she signed. She had not signed the paper. On the facts, the court was satisfied that "she intended the two writings which she made ... that is, the attested document and the signed envelope, to constitute her last will". There was thus no difficulty for the court in ascertaining the intention with which she signed on the cover, but difficulty arose as to the effect of the attestation which was within. The latter difficulty, which does not present itself in this case in the context of the signature of Kuriakose on Ext. P-1 was resolved by the court by relying on a few circumstances, which were regarded as exceptional. One was of course, that the paper being within the cover, there was the necessary physical attachment between the two as to constitute them parts of the whole, and what was more, the paper was a holograph document, was written with the same pen and on the same occasion as the envelope and "both paper and envelope were written in the presence of the attesting witnesses". This case has no analogy with the present case on this aspect. It is therefore difficult to hold, that the signature of Kuriakose on Ext. This case has no analogy with the present case on this aspect. It is therefore difficult to hold, that the signature of Kuriakose on Ext. P-1 cover, is a signature on the will even assuming that the cover is a part of the will. 5. The signature on Ext. P-1(a) the document within, is of course a signature on the will. But that signature has not as such, been attested by any one by signing that document. The further question is, whether the signatures of Pws.1 and 2 on Ext. P1 may be treated as attestation of the signature on Ext. P-1 (a). Attestation has to be in accordance with S.15(3) of the Travancore Wills Act which corresponds to S.63(c) of the Indian Succession Act, 1925. Not having witnessed the execution of Ext. P-1(a) by Kuriakose, Pws.1 and 2 cannot be considered to have attested it, unless they had "received from him a personal acknowledgment of his signature". Neither the oral evidence nor the several endorsements on Ext. P-1 point to any such acknowledgment. On the provisions of S.35 and 36 of the Travancore Registration Act and of R.73 quoted above, there is no scope for an inference of any such acknowledgment from the proceedings before the District Registrar, although it is otherwise in the case of a document presented for registration under Part VII of the Travancore Registration Act, in which the Registering Officer is enjoined by S.27(3) of that Act to enquire, whether or not such document was executed by the person by whom it purports to have been executed and can proceed with registration only on admission of execution. In the latter case, a personal acknowledgment of execution in the presence of the identifying witnesses may be read into the admission of execution before the Registering Officer. Even then, there has been a cleavage of judicial opinion in the case of non-testamentary documents the registration of which is compulsory and attestation of which is prescribed by the Transfer of Property Act as reflected by the full bench decisions of the Allahabad High Court in Lachman Singh v. Surendra Bahadur Singha, A.I.R. 1932 Allahabad 527, and of the Madras High Court in Veerappa Chettiar v. Subramania Ayyar, A.I.R. 1929 Madras 1. Moreover in the case of a testamentary document, the Supreme Court has observed in Girja Datt v. Gangotri Datt, A.I.R. 1955 S.C. 346, that the acknowledgment before the Sub Registrar in the presence of identifying witnesses in proceedings to register the document would have availed if they appended their signatures at the foot of the endorsement of registration "ammo attestandi". It is quite clear to me, that no inference of acknowledgment of execution can be made from the proceedings for the deposit of a will held before the District Registrar. If so, the signatures of Pws.1 and 2 on Ext. P-1 do not amount to attestation of the signature of Kuriakose on Ext. P-1 (a). It has already been held, that the signature on Ext. P-1 is not a signature on the will, but was made in token of presentation of the will by Kuriakose for deposit. Granting that his signing on Ext. P-1 cover constitutes due execution of the will, the plaintiff has still to confront another difficulty, which I think may also be considered. That mere signing is not attesting is borne out by S.15 (3) of the Travancore Wills Act and also by S.63(c) of the Indian Succession Act and by the definition of the term "attested" in S.3 of the Transfer of Property Act, all of which make a distinction between the words "attested" and "signed". The Privy Council observed thus in Shamu Pattar v. Abdul Kadir Ravuthan, 39 Indian Appeals 218 at page 225: "The later cases are still more direct in the interpretation of the words "attestation" and "attested". In Bryan v. White Dr. Lushington in 1850 laid down that'attest means the persons shall be present and see what passes, and shall, when required, bear witness to the facts'. In 1855 Lord Campbell, C.J., in Roberrts v. Philips, enunciated the same rule as regards the word "attested", that the witnesses should be present as witnesses and see it signed by the testator. And the principle was given effect to in the House of Lords in Burdet v. Spilsbury. The Lord Chancellor summed up the conclusion in these words: "The party who sees the will executed is in fact a witness to it; if he subscribes as a witness he is then attesting witness". And the principle was given effect to in the House of Lords in Burdet v. Spilsbury. The Lord Chancellor summed up the conclusion in these words: "The party who sees the will executed is in fact a witness to it; if he subscribes as a witness he is then attesting witness". The case cited is also authority for holding, that the word 'attested' was used by the Indian legislature in the sense in which it has been construed in English decisions. In Sirkar Barnard and Co. v. Alak Manjary Kuari, AIR. 1925 P.C. 89, which was a case of a mortgage required to be attested by the Transfer of Property Act, the Privy Council affirmed the view of the High Court, that "it must be established that the persons alleged to be attesting witnesses not only saw the execution of the document but also subscribed their names on the document as having seen the execution. In Abinash Chandra Bidyanidhi Bhattacharjee v. Dasarath Malo, AIR. 1929 Calcutta 123, a scribe put his name to a marginal statement, that he had read over the document to the executant and that he had made certain alterations at the desire of the executant and in another part he signed below the heading 'scribe'. In Abinash Chandra Bidyanidhi Bhattacharjee v. Dasarath Malo, AIR. 1929 Calcutta 123, a scribe put his name to a marginal statement, that he had read over the document to the executant and that he had made certain alterations at the desire of the executant and in another part he signed below the heading 'scribe'. Rankin, C. J., said that the mere fact that the signatory happened to be a scribe or put the word 'scribe' after his signature is not conclusive, posed the question for decision as whether it is "right to hold as a matter of law that even although on the construction of the document the name is put alio intuitu, the fact that the name is on the document at all makes the man an attesting witness" and answered it saying, that it is wrong to hold that "because the man's signature is on the document at all disregarding the purpose for which it is on the document and disregarding altogether what his signature is put to authenticate the man in question is an attesting witness." The learned Chief Justice held that he alone can be regarded as an attesting witness who has not only seen the execution of the document not to mention a case of acknowledgment of execution, but has also put his name in the document "by way of saying at the time that he has seen the execution of the document." The object in insisting upon this was stated to be that, "When the factum of the document comes into question it may be years afterwards, the document shall be proved by the evidence of witnesses who have this to vouch for the truth of their evidence". This is the substance and the object of the rule as to animus attestandi. Jarman on Wills, Vol. I, 8th Edition, summarises thus at page 137: "In every case the court must be satisfied that the names were written ammo-attestandi... it would not necessarily follow that a person did not sign as a witness because he also intended his signature to serve another purpose". In all such cases, extrinsic evidence would of course be admissible to show that the signatures were made with intent to attest the will. The observations of the Supreme Court in Girja Datt Singh v. Gangotri Datt Singh, extracted above also point to the same conclusion in respect of a testamentary document. In all such cases, extrinsic evidence would of course be admissible to show that the signatures were made with intent to attest the will. The observations of the Supreme Court in Girja Datt Singh v. Gangotri Datt Singh, extracted above also point to the same conclusion in respect of a testamentary document. 6. In the present case, Pw.1 gave evidence that he had seen Kuriakose putting his signature on Ext. P-1 cover, and that he had told him that the cover contained his will. Then he was asked pointedly why he was made a witness on Ext. P-1, when he answered that Kuriakose was known to him, which points to his competency to identify Kuriakose and to nothing more. He then said that there is an endorsement that it is a will and that he signed as a witness in continuation of the endorsement. This takes us nowhere. Though he himself did not say that he signed in the presence of testator, that lacuna was filled up by Pw. 2, who deposed to Pw.1 having signed in the presence of Kuriakose. When Pw. 2 was asked why he signed on Ext. P-1 he replied that it was as part of the will. This statement has come somewhat nearer. It is not to be understood, that unless witnesses swear to such particulars the court is helpless, and I am aware of the rule laid down by the Supreme Court in Naresh Charan Das Gupta v. Paresh Charan Das Gupta, AIR. 1955 SC. 363, 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 on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence". Apart from oral testimony which is not particularly helpful, the facts and circumstances only establish, what the endorsement itself points to, that they signed alio intuitu as identifying witnesses and not ammo attesandi. 7. It is unfortunate, that Ext- P-1 (a) disposition of the testator should fail, for no other reason than his ignorance in the matter of execution of a will. 7. It is unfortunate, that Ext- P-1 (a) disposition of the testator should fail, for no other reason than his ignorance in the matter of execution of a will. However much I am inclined to salvage the will, I do not think I can succeed, consistently with the law as I understand it. It follows that the plaintiff has to fail. The first defendant had contended even in this court that Kuriakose had not executed any will, and he had raised other untenable contentions in the lower court; the proper order would be to direct the parties to bear their costs throughout. The appeal is allowed and the suit dismissed. 8. The only point pressed in the cross-objection was that mesne profits may be directed to be settled in execution. This does not arise. The cross-objection is therefore dismissed without costs. Allowed.