JUDGMENT - R.A. JAHAGIRDAR, J.:---This is the plaintiffs appeal against the decree passed by the Civil Judge, Senior Division Aurangabad, dismissing with costs his Special Civil Suit No. 12 of 1966 which he had filed for possession of a portion from land bearing Survey No. 23 and situated at village Gharegaon in Aurangabd Taluka of Aurangabad District. The portion of the land from Survey No. 23 which the plaintiffs sued to recover measures 18 acres. The plaintiff further prayed for a perpetual injunction restraining the defendants in the suit from obtaining possession of the remaining portion of the land from Survey No. 23 in pursuance of an order passed by the Sub-Divisional Magistrate in a proceeding under section 145 of the Criminal Procedure Code. 2. The plaintiff is the adopted son of Mannulal, Gangubai-defendant No. 1 is the concubine of Mannulal defendants Nos. 2 and 4 are the children of defendant No. 1 from Mannulal and defendant No. 3 is described as the son of defendant No. 1 from her previous husband. Mannulal having died in the year 1962, there were inevitably quarrels between the plaintiff and defendants relating to the property left behind by Mannulal. At this stage it must be mentioned that Kanhyalal the natural uncle of the plaintiff had owned two lands bearing Survey Nos. 18 23 and the same had been gifted by him jointly to the plaintiff and his adoptive father Mannulal. That gift deed is at Exh. 86-P. After Mannulals death in the year 1962 in the normal course under section 8 of the Hindu Succession Act the plaintiff would become the owner of both the lands which had been gifted as mentioned above. But a Will at Exh. 87 dated 29th December, 1961, executed a few months before the death of Mannulal, Mannulal willed away the entire Survey No. 23 to defendant No. 2. Here again if the Will is held to be proved, defendant No. 2 would at best get only half of Survey No. 23. 3. There were disputes regarding the possession of Survey No. 23 and as already mentioned above there were proceedings under section 145 of the Criminal Procedure Code and the Sub-Divisional Magistrate by his order dated 27th August, 1965 directed that the entire Survey No. 23 should be restored to defendants Nos. 3. There were disputes regarding the possession of Survey No. 23 and as already mentioned above there were proceedings under section 145 of the Criminal Procedure Code and the Sub-Divisional Magistrate by his order dated 27th August, 1965 directed that the entire Survey No. 23 should be restored to defendants Nos. 1, 2 and 4 they being presumably in possession of the land within two months next before the passing of the preliminary order. Pursuant to that order possession of 18 acres of Survey No. 23 was given to the defendants on 21st September, 1965; the possession of the other area was not given because there were standing crops in that area. 4. Before the order of the Sub-Divisional Magistrate could be executed in its entirely, the plaintiff filed the present suit on 9th April, 1966 for the reliefs which we have already mentioned above. His case is that he being the only son of Mannulal was entitled to succeed to his property, whether ancestral of separate. Therefore, he was the full owner of both the lands Survey Nos. 18 and 23 and the defendants had no right, title or interest in respect of these lands. Since Survey No. 18 had already been disposed of by the plaintiff two years prior to the date of giving his deposition for an amount of Rs. 65,000/- that land is not the subject-matter of this suit. The plaintiff claims that he is the exclusive owner of Survey No. 23 and, therefore, he asked for possession of 18 acres which had been given to the defendants under the order of the Sub-Divisional Magistrate and for an injunction restraining the defendants from disturbing his possession of the remaining area pursuant to the order of the Sub-Divisional Magistrate. 5. The contesting defendants viz. defendants Nos. 1, 2 and 4, contended, among other things, that there was a partition between Mannulal and the plaintiff in which partition Survey No. 18 had been given to the plaintiff while Survey No. 23 was retained by Mannulal. Mannulal who according to them thus became full owner of Survey No. 23 had executed a Will on 29th December, 1961 bequeathing Survey No. 23 to defendant No. 2. They, therefore, contended that the plaintiff was not entitled to claim ownership of Survey No. 23. 6. Mannulal who according to them thus became full owner of Survey No. 23 had executed a Will on 29th December, 1961 bequeathing Survey No. 23 to defendant No. 2. They, therefore, contended that the plaintiff was not entitled to claim ownership of Survey No. 23. 6. Several issues were raised in the trial Court and on all of them findings were given against the plaintiff. The learned trial Judge held that the plaintiff had failed to prove his title to the suit land and, therefore, he was not entitled to the reliefs which he claimed in the suit. The suit was therefore dismissed with costs. 7. Being aggrieved by the decree of the learned trial Judge the plaintiff has preferred this appeal which has been argued by the learned Counsel Mr. M.P. Kanade. Without prejudice to his contention on the grounds mentioned in the memo of appeal Mr. Kanade confined his argument at the initial stage of the question whether defendant No. 2 became owner of Survey No. 23 as a result of the bequest made in the Will dated 29th December, 1961. If it could be shown that it was not a Will made in compliance with the mandatory requirements of section 63 of the Indian Succession Act that Will, will not convey and title to defendant No. 2 who then cannot become the owner of the suit land. With this limited object in view. Mr. Kanade took us through the evidence on record. The burden of proving the proper execution of the Will Exh. 87 was naturally on the defendants who propounded the same and, therefore, we went through the evidence of the defendants to begin with. 8. The Will has been scribed by witness Balkrishna who is examined at Exh. 69. He has deposed that he was working as a copyist in the Collectors Office for about 4 years prior to the date of the deposition and he wrote the Will which was executed by Mannulal in favour of defendant No. 2. He specifically mentions : ".........It bears my signature as a writer. Mannulal signed it before the Sub-Registrar in my presence. It was attested by Yasin Baba from Gharegaon. I identify the signatures of Mannulal and Yasin on the suit Will....." In his cross-examination he denied the suggestion that Mannulal did not sign the suit Will in his presence. He specifically mentions : ".........It bears my signature as a writer. Mannulal signed it before the Sub-Registrar in my presence. It was attested by Yasin Baba from Gharegaon. I identify the signatures of Mannulal and Yasin on the suit Will....." In his cross-examination he denied the suggestion that Mannulal did not sign the suit Will in his presence. From the substantial portion of his deposition reproduced above it is clear that Balkirshna signed the Will as a scribe and not as an attesting witness. He of course mentions that Mannulal signed it before the Sub-Registrar in his presence but from the other evidence on record it is clear that Mannulal did not sign the Will before the Sub-registrar; he put his signature in the presence of the Sub-Registrar on a sealed envelope containing the Will. That part of Balkrishnas evidence, therefore, is not correct. Nevertheless he identified the signatures of Mannulal and Yasin on the Will and on this basis Mr. Parkar who appears for the contesting Respondents very strenuously urged that in substance Balkrishna has acted as an attesting witness inasmuch as he has signed the original Will and he has deposed on oath in the Court that he identified the signature of Mannulal. Before we consider this contention of Mr. Parkar let us see the evidence of Mohammad Yasin Exh. 72, who is admittedly the attesting witness :--- ".......I knew about the suit will executed by Mannulal in favour of the defendant No. 2. It relates to the suit land and house at Gharegaon, before 6 or 7 years. The defendant No. 2 used to offer his services to Mannulal. Hence, he executed the suit Will. A registered Will was executed in the S.R.s Office Aurangabad. It was written by Balkirshna Kashirsagar. Deceased Mannulal signed that Will at two places in our presence. The contents of the Will were read out to us by the witness Balkrishna Kashirsagar-the writer and then I signed the same. The Will dated 29-12-1961 is the same now shown to me. I identify the signature of Mannulal and myself on the same........" Both the evidence of this witness and the evidence of Balkrishna have not been seriously challenged in the cross-examination by the plaintiff for obvious reasons. Neither of the witness proves the attestation of the Will by two attesting witnesses as required by section 63 of the Indian Succession Act. 9. Neither of the witness proves the attestation of the Will by two attesting witnesses as required by section 63 of the Indian Succession Act. 9. Now turning to the contention of Mr. Parkar that Balkrishna should be recorded as an attesting witness inasmuch as he has signed the original Will and he has also identified the signature of Mannulal in the sworn testimony before the Court. We do not think that it is possible to accede to this argument of Mr. Parkar in view of the provisions contained in section 63 of the Indian Succession Act and a decision of the Supreme Court to which reference is being made shortly. Section 63 of Indian Succession Act requires that every privileged Will shall comply with the rules contained in the said section of which Rule (c) is as follows : "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 of the signature of such other 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 shall be necessary." This rule contained in section 63 clearly shows that each of the attesting witnesses must have seen the testator sign or affix his mark to the Will and each of such witness shall further sign the Will in the presence of the testator. An attesting witness, therefore, must bear, a witness to the signature of the testator and sign as such. The person who has been described as a scribe in the document and has not sign further as an attesting witness nor has been described as such cannot at all the said to be an attesting witness with the meaning of section 63 of the Indian Succession Act. 10. The word "attested" has been authoritatively interpreted by the Supreme Court in (M.L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and others)1, A.I.R. 1969 S.C. 1147. 10. The word "attested" has been authoritatively interpreted by the Supreme Court in (M.L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and others)1, A.I.R. 1969 S.C. 1147. That word which was interpreted by the Supreme Court was in relation to section 3 of the Transfer of Property Act, but the definition is substantially the same as in section 63 of the Indian Succession Act and we can, therefore, safely follow the said decision of the Supreme Court which has held as follows :- "The word "attested", occurs in section 3, T.P. Act, as part of the definition itself. To attest is to bear witness to a fact. The essential conditions of a valid attestation under section 3 of T.P. Act are : (1) two or more witness have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature anime attestandi, that is for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document of some other purpose, e.g. to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness." 11. The Supreme Court has emphasised that if a person puts his signature on the document for any purpose other than for attesting the signature of the executant then that person be regarded as an attesting witness. In the present case Balkrishna has put his signature as a scribe. The conclusion, therefore, is inevitable that Balkrishna is not an attesting witness. Balkrishna is also not an attesting witness because he does not say that he put his signature in the presence of the testator. It appears from his evidence that he merely scribed the document and in token thereof he put his signature and thereafter the document was taken for the signature of Mannulal and the attesting witness. 12. Balkrishna is also not an attesting witness because he does not say that he put his signature in the presence of the testator. It appears from his evidence that he merely scribed the document and in token thereof he put his signature and thereafter the document was taken for the signature of Mannulal and the attesting witness. 12. The Will, therefore, has not been executed in accordance with the mandatory requirements of section 63 of the Indian Succession Act and this Will, therefore, cannot be held to be proved so as to bestow any title on defendant No. 2. If the Will is out of the way the plaintiff must inherit whatever interest Mannulal had in Survey No. 23. As he is the only son and heir, under section 8 of the Hindu Succession Act the plaintiff shall be the full owner of Survey No. 23 and thus he is entitled to the relied which he has claimed in the suit. We accordingly allow the appeal and set aside the decree passed by the learned Civil Judge, Senior Division, Aurangabad, in Special Civil Suit No. 12 of 1966 and direct that a decree be drawn in its stead in the following terms. 13. The suit is decreed for possession of the land measuring 18 acres from Survey No. 23 at Gharegaon Pimpri which the defendants obtained in a proceeding under section 145 of the Criminal Procedure Code. The defendants are hereby restrained by an order of permanent injunction from taking possession of the rest of the portion of land Survey No. 23 of village Gharegaon Pimpri in pursuance of the order passed by the Sub-Divisional Magistrate under section 45 of the Criminal Procedure Code. The plaintiff is entitled to past mesne profits at Rs. 1000/-. An inquiry into the future mesne profits shall be held in accordance with the Order, 20 Rule 12(1)(c) of the Civil Procedure Code. In view of the peculiar facts and circumstances of the case there will be no order as to costs. -----