JUDGMENT : A. Misra, J. - Plaintiffs are the Appellants. Their case, in brief, is that Maharga Mallik, the owner of the suit properties died about 30 years back leaving a widow Phula and six daughters, Two of the daughters died without any heirs. The two Plaintiffs and Defendants Nos. 2 and 3 are the surviving four daughters. On Phula's death on 16-12-1956, the properties devolved on the four daughters, i.e. Plaintiffs and Defendants Nos. 2 and 3. Defendant No. 1, a stranger to the family is alleged to have trespassed on those lands, and therefore, Plaintiffs prayed for declaration of their title along with Defendants Nos. 2 and 3 to the suit properties and recovery of possession. Defendant No. 1, who alone contested the suit, resisted the claim on two grounds. Firstly, as adopted son of Maharga he succeeded to the suit properties and in the alternative, he asserted his title on the basis of a will executed by Phula on (sic) bequeathing all the properties on him. 2. The trial Court found against the claim of adoption made by Defendant No. 1, but held that he acquired title to the properties under the win executed by Phula in 1949, and accordingly, dismissed the suit. The lower appellate Court dismissed the appeal by the Plaintiffs agreeing with the trial Court's finding that Defendant No. 1 acquired title to the suit properties on the basis of the will executed by Phula and further held that Defendant No. 1 is the validly adopted son of Maharga. 3. There is no dispute that Phula, widow of Maharga succeeded to the suit properties on her husband's death; that Plaintiffs and Defendants Nos. 2 and 3 are the surviving daughters of Maharga and that Phula died on 16-12-1956 after coming into force of the Hindu Succession Act. If both or either of the grounds taken by Defendant No. 1 is established, the Plaintiffs' suit must fail. On the other hand, if both the claims made by Defendant No. 1 fail, necessarily, Plaintiff will be entitled to a decree, because admittedly they are the natural heirs in the order of succession. 4. If both or either of the grounds taken by Defendant No. 1 is established, the Plaintiffs' suit must fail. On the other hand, if both the claims made by Defendant No. 1 fail, necessarily, Plaintiff will be entitled to a decree, because admittedly they are the natural heirs in the order of succession. 4. Learned Counsel for Appellants assails t he judgments of the Courts below on the following three grounds: (1) that the finding of the lower appellate Court upholding the factum and validity of adoption of Defendant No. 1 is bad in law as the same is not based on evidence and has been arrived at on erroneous construction of the contents of the will (Ex. B); (2) assuming that the valid execution and attestation of Ex. B is proved, Defendant No. 1 will not acquire any title to the suit properties as at the time of execution of Ex. B, Phula was only a limited owner; (3) that the execution and attestation of Ex. B have not been legally proved, and as such, the claim of Defendant No. 1 on the basis of Ex. B is not sustainable. 5. Point No. 1 It is not necessary to deal in detail with the question of adoption. The trial Court in para 7 of its judgment under issue No. 3 on a consideration of the evidence held that the alleged adoption has not been proved. On the other hand, the lower appellate Court in para 4 of its judgment negatived this finding and found in favour of the adoption. In coming to this finding, it has not relied on the evidence adduced by Defendant No. 1 in proof of the alleged adoption, but mainly rested on the ground that such an adoption finds ample corroboration from the recitals in Ex. B. A perusal of Ex. B. shows that it has erroneously construed the contents of Ex. B and come to the aforesaid finding. Mr. R.N. Misra, learned Counsel appearing for Respondent No. 1 conceded that he cannot support the finding of the lower appellate Court in favour of the adoption, and confined his claim of title to the properties on the basis of Ex B. In these circumstances the finding of the lower appellate Court that Defendant No. I is proved to be the adopted son of late Maharga cannot be sustained, and as such, is set aside. 6. 6. The second contention of learned Counsel for Appellants is that assuming the valid execution and attestation of Ex. B. Defendant No. 1 cannot claim any rights thereunder as by the date of execution of Ex. B, in 1949, Phula was only a limited owner without any powers of testamentary disposition. This contention has been rejected by both the Courts below and I think rightly so. To attract the applicability of Section 14 of the Hindu Succession Act, the essential condition is that the Hindu female must be in possession of the property at the time of corning into force of the Act. In that case, by operation of law the limited estate would be enlarged and she would become the full owner. There is an essential difference between alienations by way of a will and alienations by way of gift, sale etc., because in the ea se of a will, the divesting operates only from a future date, i.e. the death of the testator, while in the latter case, divesting takes place with immediate effect. Though Phula executed Ex. B, in 1949, admittedly she died in December, 1956 after the coming into force of the Hindu Succession Act and the death both title and possession vested in her. Therefore, in spite of her executing Ex. B in 1949 she became a full owner of the property on coming into force of the Act. It is not disputed that after becoming full owner, the right to create testamentary disposition was available to her. Therefore, in my opinion, the operation of the will if it is otherwise valid cannot be affected on the ground that at the time of its execution she had no power of disposition though such a power had accrued to her by the date Ex. B could legally take effect. The decisions reported in Kuppa Viswapathi Vs. Kuppa Venkata Krishna Sastry, and Harnam Kaur and Another Vs. Sher Singh Attar Singh lend full support to the aforesaid conclusion. Therefore, this contention of Appellants has no merit and is not sustainable. 7. The main attack of Appellants directed against Ex B, relates to the valid execution and attestation on the following grounds: It is urged (1) that neither the signature nor thumb mark of the executant has bean taken on Ex. Therefore, this contention of Appellants has no merit and is not sustainable. 7. The main attack of Appellants directed against Ex B, relates to the valid execution and attestation on the following grounds: It is urged (1) that neither the signature nor thumb mark of the executant has bean taken on Ex. B; (2) that the executant Phula being an illiterate old lady, it is incumbent on Defendant No. 1 to prove by satisfactory evidence that the contents were read over, explained to and understood by her before she purported to have executed it and that Defendant No. 1 has failed to adduce any satisfactory evidence in this respect; and (3) that the attestation of Ex. B, as required under law has not been proved. On the other band, for Respondent No. 1, it is argued that as valid execution and attestation of Ex. B, were not specifically challenged before the lower appellate Court, it is not open to Appellants now to raise such a contentior. Secondly, it is not necessary to take the signature or thumb mark of the executant on a document as it, is sufficient compliance with requirements of law, if her name or thumb mark has been appended at her direction and by her authority. Thirdly, there is sufficient evidence that Phula executed Ex. B after the contents were fully explained to and understood by her and lastly, execution and attestation have been proved by d.ws. 3 and 5 inaddition to the admission of execution before the Sub-Registrar which itself is sufficient proof of the same. 8. The contention of Respondent No. 1 that Appellants Me debarred from questioning the valid execution and attestation of Ex. B, in this second appeal not, having urged it in the lower appellate Court is not tenable. Issue No. 4 in the trial Court was framed as follows: Did the mother of Plaintiffs and Defendants Nos. 2 and 3 ever bequeath all the properties of her husband to Defendant No. 1 under a registered will? If so, is the will valid and binding on Plaintiffs and Defendants Nos. 2 and 3? This issue thus covered questions relating to both factum and validity of Ex. B. In para 10 of its judgment the trial Court dealt with the evidence and contentions advanced by Plaintiffs in relation to Ex. If so, is the will valid and binding on Plaintiffs and Defendants Nos. 2 and 3? This issue thus covered questions relating to both factum and validity of Ex. B. In para 10 of its judgment the trial Court dealt with the evidence and contentions advanced by Plaintiffs in relation to Ex. B. Those included questions relating to the validity of attestation as wen as execution on the ground that Phula was an illiterate old lady and there is absence of evidence to show that contents were explained to her before execution. In the memorandum of appeal before the lower appellate Court, this finding of the learned Munsif was also challenged on specific grounds in addition to the ground of absence of power of disposition in Phula at the time she executed Ex:. B. The lower appellate Court, however, in para 5 of its judgment confined considerations to the contention relating to the limited power of disposition of Phula at the time of execution of Ex. B and completely ignored to consider the other aspects which had been specifically challenged in the grounds of appeal. Therefore, the argument that Appellants did not raise these contentions before the lower appellate Court is not correct. 9. I will now proceed to consider each of the grounds of attack by Appellants against the valid execution and attestation of Ex. B. In Ex. B. the name of executant has been appended as "phula Malikani Nishani' in the handwriting of the scribe (d.w 3). D.w. 3 has deposed that at the executant's desire and direction he put her mark by endorsing the aforementioned words, Section 63 of the Indian Succession Act provides the manner of execution by the testator, According to this provision, the testator must sign or affix his mark to the will or, must be signed by some other person in his presence and by his direction, the further requirement being that 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. It appears to be well settled that signing of a document through the pen of the scribe is inconformity with the requirements of Section 63 vide AIR 1934 Madras 4363, AIR 1962 A.P. 544 and A. I. R. 1961 Orissa 1805. It appears to be well settled that signing of a document through the pen of the scribe is inconformity with the requirements of Section 63 vide AIR 1934 Madras 4363, AIR 1962 A.P. 544 and A. I. R. 1961 Orissa 1805. Therefore, I do not find any merit in the first contention that the validity of execution of Ex. B, can be questioned on the ground of absence of any signature or mark of the executant herself. 10. Coming to the second ground, it is well settled that the mode of proving a will does not differ from that of proving any other document, except as to the special requirements of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act. The onus of proving the will being on the propounder, he is to show by satisfactory evidence that the will was signed by the testator; that the testator at the relevant time was in a sound and disposing state of mind and understood the nature and effect of the disposition and put his signature to the document of his own free will vide AIR 1959 S.C. 4438. The principles which govern proof of execution of documents taken from pardanashin women are equally applicable to documents taken from illiterate women and they have been enunciated as follows in the decision reported in Mst. Kharbuja Kuer v. Jangbahadur 1962 S.C.D. 902 : AIR 1963 S.C. 1903 As regards documents taken from pardanashin women, the Court has to ascertain that the party executing them has been a free agent and duly informed of what she was about The reason for the rule is that the ordinary presumption that a person under stands the document to which he has affixed his name does not apply in the case of Pardanashin women. The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a Pardanashin lady to establish that the said document was entered into by her after herself understanding the nature of the transaction. 11. The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a Pardanashin lady to establish that the said document was entered into by her after herself understanding the nature of the transaction. 11. The trial Court has overruled the contention of Plaintiffs that Defendant No. 1 failed to establish that Phula, an illiterate lady executed the document after fully understanding the contents mainly on two ground : (1) that Plaintiffs have not alleged such a case and p. w. 1 does not state about such facts; (2) that t he recitals of Ex. B, are quite plain and simple without any condition, term or expression which would have required any explanation. Admittedly, at the time of execution of Ex. B, Phula was advanced in age and was an illiterate woman. The burden of proof being on the person who seeks to sustain a transaction entered into with such a lady, to prove that the document was entered into by her after herself understanding the nature of the transaction, the question of Plaintiffs making out such a case in the plaint or p.w. 1 deposing to such facts cannot arise. Similarly, no inference can be drawn that the executant executed the document after understanding the nature of the transaction simply on the ground that the conditions, terms and expressions used in the document are not ambiguous and did not require explanation. The lower appellate Court has completely ignored to consider this aspect. The only two witnesses examined to prove the execution of the document are the scribe (d.w. 3) and one of the attestors (d.w. 5.) There is no endordement by (d.w. 3) that the contents were read over and explained to and understood by the executant before its execution. Some of the statements also show that in all respects the document was not drafted strictly in accordance with her instructions. D.w. 5 says that he cannot say what was written in Ex. B. If he was present at the time of execution and the contents, in fact., were read over and explained to Phula, there is no convincing reason why d.w. 5 cannot say the purport of the contents. Evidence has not been adduced to show that any independent advice was available to Phula at the time of execution of Ex. B. If he was present at the time of execution and the contents, in fact., were read over and explained to Phula, there is no convincing reason why d.w. 5 cannot say the purport of the contents. Evidence has not been adduced to show that any independent advice was available to Phula at the time of execution of Ex. B. On the other hand, d.w. 1 states that only himself and his natural father, besides Arjun and Banamali, the two who figures as' attesting witnesses alone were present at the time of execution of Ex. B on the Sub-Registrar's verandah. Defendant No. 3, examined as d.w. 2 has stated that Sukru, natural father of Defendant No. 1 persuaded Phula to get the will executed in the Sub-Registrar's office on the plea that it will rot be convenient to execute it at home. This would rather go to indicate that the execution was brought about by persuasion of the natural father of Defendant No. 1 who was interested in his son getting these properties, particularly when he found that Maharga had not made any adoption as a consequence of which the child would not get any benefit. The trial Court has failed to consider the question whether Defendant No. 1 discharged t he onus that rested on him in relation to the execution of Ex. B, on grounds which are not sustainable and the lower appellate Court, as already stated, has totally ignored to consider these aspects. Considering the evidence and circumstances discussed above, I come to the conclusion that Defendant No. 1 has failed to prove that Phula executed Ex. B, after understanding the nature of the transaction. 12. Coming to the question of due attestation of Ex. B, the onus undoubtedly is on Defendant No. 1 to prove that the two attesting witnesses d.w. 5 and Arjun Mallik saw the deceased execute the will and they themselves signed the same in the presence of the deceased. Only one of the two attesting witnesses has been examined as d.w. 5. In his evidence, he has stated that Phula executed It will in Defendant No. 18 favour which he attested along with one Arjun Mallik. In his cross-examination, he has admitted that he is unable to read a single letter or word in Ex. B, due to failing eye-eight. In his evidence, he has stated that Phula executed It will in Defendant No. 18 favour which he attested along with one Arjun Mallik. In his cross-examination, he has admitted that he is unable to read a single letter or word in Ex. B, due to failing eye-eight. Therefore, though he claims to have attested a will executed by Phula in favour of Defendant No. I, he is not in a position to say that Ex. B, is that document or that he attested that very document. Even assuming that the document is Ex. B, he does not specifically say that Phula executed it in his presence nor does he say that he and Arjun attested in her presence. Therefore, his evidence does not furnish proof of the requirements contained in Section 61(c) of the Indian Succession Act. Learned Counsel for Respondent No. 1 urges that d.w. 3 has proved that d.w. 5 and Arjun attested Ex. B in the presence of the executant. The evidence of d.w. 3 is that Ex. B, was read over to Phula and the witnesses after it was scribed and then at the executant's direction, he put her mark on it. He has further stated that the witnesses also signed the deed "in my presence". In other words, he does not say that the attesting witnesses signed in the presence of the executant. It is argued that when the execution and attestation took place at the same place, it will be reasonable to infer that the execution was in the presence of witnesses and they attested in the presence of the executant. This possibility no doubt cannot be excluded, but such a possibility based on inference cannot be a substitute for proof. For these reasons, I agree with the learned Counsel for Appellants that Defendant No. 1 has failed to prove valid attestation of Ex. B. 13. It was lastly urged by learned Counsel for Respondent No. I that even if there is deficiency of evidence in the matter of attestation, the admission of execution by the executant before the Sub-Registrar and signatures of the identifying witnesses can amount to proof of valid attestation. No evidence has been adduced to prove as to what transpired at the time of registration. In the decision reported in Girja Datt Singh Vs. No evidence has been adduced to prove as to what transpired at the time of registration. In the decision reported in Girja Datt Singh Vs. Gangotri Datt Singh it has been held that it cannot be presumed from the mere signatures of two persons appearing at the foot of the endorsement of the registration of a will, that they had appended their signatures to the documents as attesting witnesses nor can it be construed to have been done 80 in their capacity as attesting witnesses. Therefore, I am unable to agree with this contention advanced on behalf of Respondent No. 1. The result, therefore, is that Ex. B is not proved to have been duly executed and validly attested, and as such cannot furnish the basis of title to Defendant No. 1 in regard to the suit properties. Thus, having found that the adoption has not been proved and on the basis of the will Defendant No. 1, is not entitled to claim the suit properties, Plaintiffs are entitled to succeed in getting the reliefs prayed for. 14. In the result, the appeal succeeds, the judgments and decrees of the Courts below are set aside and the suit is dismissed with costs throughout. Final Result : Dismissed