Judgement JUDGEMENT:- The plaintiffs are the appellants. They have filed the suit for a declaration of their title on the basis of a Will dated 25-1-1966 executed by their father. The first defendant who is a sister of the plaintiffs claimed the property in its entirety under a document styled as a settlement deed dated 25-5-1955. The main question for consideration before the courts below was whether the will Ex. A. 1. has been proved to have been duly attested. Though the trial Court held that the Will has been proved to be valid and enforceable, the lower appellate Court held that the evidence of P.Ws. 1 and 3 who are the attestors of the document is not enough to prove the execution and attestation of the Will. In that view, the suit was dismissed. 2. P.W. 1 one of the attestors to the document in the chief-examination stated that the testator was in a sound disposing state of mind when he executed the document. He did not speak to his attestation of the Will or by P.W. 3 or the executant signing the document in his presence specifically in the chief-examination. In cross-examination, while he was answering the questions as to what happened in the Sub-Registrar's office, he had stated that he had been to the Sub-Registrar's office when it was registered. He further stated that the plaintiffs also had come to the Registrar's office. After this statement, we find in the evidence a statement to the following effect: "P.W. 3 attested the document I also attested." 3. The learned counsel for the first defendant contended that in the sequence in which this evidence is given, it should be understood that P.W. 1 is speaking about his being an identifying witness before the Sub-Registrar and this evidence cannot be treated as proof of P.W. 1 signing the Will itself as an attestor. Though this argument is plausible on the language used in the evidence, I am unable to agree with this contention of the learned counsel. If really it was intended to be a statement that he was an identifying witness, the recording of the evidence will be that he was also an identifying witness before the Sub-Registrar. But on the other hand, it is stated in Tamil as follows: (Omitted Tamil matter - Ed). (Natarajan attested as a witness. I am also a witness). If really it was intended to be a statement that he was an identifying witness, the recording of the evidence will be that he was also an identifying witness before the Sub-Registrar. But on the other hand, it is stated in Tamil as follows: (Omitted Tamil matter - Ed). (Natarajan attested as a witness. I am also a witness). This shows that he was speaking about the attestation of the Will and not his being an identifying witness as well. P.W. 3 had categorically stated that P.W. 1 attested the document in his presence. There could therefore be no doubt that there is evidence to show that P. W. 1 had attested the document. P.W. 3 the other witness had given evidence that he had attested the will and he had also seen P.W. 1 attesting the document. P.W. 3 had further specifically stated that he had seen the executant sign the will. But neither P.W. 1 nor P.W. 3 had stated that they signed as witnesses in the presence of the testator. 4. Section 63 (c) of the Indian Succession Act, 1925 reads 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." 5. The definition of the word 'attestation' in Sec.3 of the Transfer of Property Act is also in identical terms. Section 68 of the Indian Evidence Act, 1872 dealing with proof of execution of documents required by law to be attested, prohibits the use of a document as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence. There is an important proviso which takes out a registered document from the purview of that provision. There is an important proviso which takes out a registered document from the purview of that provision. But that proviso is not applicable to a will. Therefore, from the provisions of S.63 (c) of the Indian Succession Act, the definition of 'attestation' in S.3 of the Transfer of Property Act and Section 68 of the Indian Evidence Act, the execution of a document will have to be proved by calling in at least one of the attesting witnesses and attestation itself has to be proved in the form in which S.63 (c) of the Indian Succession Act requires. Under that provision attestation will have to be proved by the attesting witness admitting attestation as also proving that they signed the document in the presence of the testator. 6. In this case, the execution as such may be taken as proved within the meaning of S.68 of the Indian Evidence Act. At least P.W. 3 had stated that the testator had signed the document in his presence and that he had also seen the other witnesses attesting the document. But neither the evidence of P.W. 1 nor that of P.W. 3 is enough to show that each of the witnesses signed the Will in the presence of the testator. 7. Referring to Section 63 of the Indian Succession Act, the Supreme Court in Girja Datt v. Gangotri Datt, AIR 1955 SC 346 held that in order to prove that the due attestation of a will, the propounder of the will has to prove that the two witnesses saw the testator sign the will and that they themselves signed the same in the presence of the testator. The learned counsel for the appellants relied on the decision of the Supreme Court in Nareshcharan v. Paresh Charan, AIR 1955 SC 363 wherein their Lordships have observed 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 and that it will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator and argued that the evidence of P.Ws. 1 and 3 is enough to probabilise the fact that they also signed as attesting witnesses in the presence of the testator. 1 and 3 is enough to probabilise the fact that they also signed as attesting witnesses in the presence of the testator. It is true that if the evidence is such as to consider the attestation in the presence of the testator probable, the mere fact that the witnesses did not specifically state that they attested the document in the presence of the testators may not invalidate the document itself. As for instance, if the evidence is to the effect that the testator and the witnesses were present in one place and after execution of the document, the witnesses attested and that was the evidence, one may presume probably that the statement that they attested also may be taken as evidence of an attestation in the presence of the testator. But in his case, P.W. 3's evidence leaves an impression that P.W. 3 and the testator alone were present and later P.W. 1 attested. In the circumstances, therefore, I am unable to accept the contention of the learned counsel that the evidence in this case probabilises the signing or attestation by the witnesses in the presence of the testator. Since the due execution of the document not having been proved in the manner in which it is required in law to be proved, we cannot rely on the will Ex. A. 1, which was produced and relied on by the learned counsel for the appellants in support of the claim of title of the plaintiffs. If the will is held not proved, whether the document dated 25-6-1955 is construed to be a settlement or a will makes no difference, because in either case, the first defendant will get the property under that document and the plaintiffs cannot claim any title to the same. In the result, the second appeal fails and the same is dismissed. There will be no order as to costs in this appeal.