K. A. SWAMI, J. ( 1 ) BOTH these matters -the revision petition and the Miscellaneous appeal-arise out of the same proceeding. ( 2 ) ONE Huchamma had filed OS No. 5 of 1972 in the Court of the Civil Judge, bellary, against respondents 1 and 2 for a declaration that the gift deed dt. 12-2-1970 got executed from her, was obtained by fraud and coercion and as such, the same be cancelled and for a permanent injunction restraining the 1st defendant interfering with the suit 'a' Sch. properties. During the pendency of the suit, Huchamma died on 6 1-1973 leaving a registered will dt. 11-2 1969 bequeathing all her properties to the revision petitioner. The petitioner filed IA No. II in the trial Court for bringing him on record as the legal representative of the deceased Huchamma on the basis of the aforesaid will left by her. There was a delay in filing the application IA 2, therefore, an application IA no. 1 was also filed for setting aside the abatement. The lower Court has held that the petitioner has shown sufficient cause for condoning the delay and for setting aside the abatement; but however, with regard to the question as to whether the petitioner can be brought on record as the legal representative of the deceased Huchamma, it has been held by the Court' below that the will claimed to have been executed by the deceased Huchamma is not a valid will therefore, the petitioner cannot be considered to be the legal representative of the deceased Huchamma On the basis of this finding, the Court below has rejected both, the applications. As against the order rejecting the application to bring the petitioner on record as the legal representative of the deceased Huchamma, the petitioner has preferred the top noted civil revision petition and as against the order refusing to set aside the abatement, as the said order is appealable and the appeal lay to the Dist. Court, the petitioner has preferred the Misc. A No. 103 of 1976 before the Dist. Court. As both the cases related to the same subject, the aforesaid appeal being the Misc A No. 103 of 1976 has been withdrawn from the file of the Dist. Judge, bellary. Accordingly, both the matters are heard together. Court, the petitioner has preferred the Misc. A No. 103 of 1976 before the Dist. Court. As both the cases related to the same subject, the aforesaid appeal being the Misc A No. 103 of 1976 has been withdrawn from the file of the Dist. Judge, bellary. Accordingly, both the matters are heard together. ( 3 ) THE lower Court has held that the will in question is not valid because of the following reasons ;"no doubt it is in the evidence of pw 2 who has identified the executant before the Sab Registrar that he saw huchamma put her LT mark to the will at Exs. P3 (a), (b) and (c) and when huchamma admitted the correctness of recital of the deed when they were read over to Narayanappa. If he was really present at the time of execution of the will, it is sot explained why be has not attested the same. What the law required is that the will shall be attested by 2 or more witnesses each of whom has seen the testator sign or affix the mark to the will or has seen some other person sign the will in the presence and by the direction of the testator. I have already pointed out that PW 2 is not an attestor to the will and however much he speaks to the execution of the will it is no legal evidence. It is the attesting witnesses who should have seen the testator sign the will. Though at this stage, the validity of the will cannot be gone into in detail, the materials on record are sufficient to hold that there is no valid will executed by Huchamma and the petitioner cannot be considered as legal representative of Huchamma on the strength of the said invalid will ex. P 3. Under these circumstances, ia 2 is liable to be rejected and accordingly IA 2 filed by the petitioner under or. 22, R. 3 of CPC is hereby dismissed". Thus, the finding of the Court below that the will in question is not valid, is based on the ground that PW 2 cannot be considered to be an attesting witness and as such, the will is not attested by two witnesses, therefore, it is not valid. 22, R. 3 of CPC is hereby dismissed". Thus, the finding of the Court below that the will in question is not valid, is based on the ground that PW 2 cannot be considered to be an attesting witness and as such, the will is not attested by two witnesses, therefore, it is not valid. One budan Sab has signed the will as a witness and just below that PW 4 the scribe of the will, has also signed. PW 2 Anjanappa has signed below the endorsement made the Sub-Registrar at the time of registration of the will. Budan Sab, who is dead has signed at two places i,e. , Ext. P 3 (E) and Ext. P 3 (D) at the place intended for the signatures of the witnesses and also below the entitlement of the Sub-Registrar. ( 4 ) IT was submitted on behalf of the petitioner that the will being a document not required to be compulsorily registered, it was not necessary to make all the attestations before the will came to be presented for registration ; therefore, it was submitted that the witnesses who were present in the office of the Sub Registrar and have subscribed their signatures or thumb marks to the will, as the case may be, and if their evidence satisfies the requirements of they being attesting witnesses, the evidence of such witnesses may be taken as the evidence of attesting witnesses and merely because of the fact that the signature of such witnesses are found at the place not intended for the attesting witnesses, it cannot, on that ground, be said that such witnesses are not attesting witnesses. At any rate, it was contended hat the evidence of the scribe PW 4 also satisfies the requirements of an attesting witness; as such, the Court below was not justsfied in completely ignoring the evidence of PW 2 and PW 4. ( 5 ) THE learned counsel also further submitted that as per the law laid down by the Supreme Court in the case of Beni chand v. Kama/a Kunwar (1), it is not necessary in order to become an attesting witness that one must sign at the place intended for the signature of the witnesses. ( 5 ) THE learned counsel also further submitted that as per the law laid down by the Supreme Court in the case of Beni chand v. Kama/a Kunwar (1), it is not necessary in order to become an attesting witness that one must sign at the place intended for the signature of the witnesses. What is necessary is that the witness must have signed the will in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. According to the learned counsel, if the evidence of PW 2 Anjanappa and the scribe PW 4 is looked into from this point of view, it become clear that they can be regarded as attesting witnesses, as such, it was submitted that the lower Court has acted with material irregularity and illegality in adjudging the will in question as invalid. ( 6 ) ON the contrary, it was submitted on behalf of the respondents that Anjanappa PW 2 has not signed as an attesting witness whereas, he has signed only as an identifying witness and as such, he cannot be said to be a person having signed the document as an attesting witness. It was also submitted that PW 4 also cannot be considered to be an attesting witness, because firstly he has not signed as an attesting witness and secondly he has not spoken to the presence of the other attesting witness. Therefore, his evidence also cannot be said to be that of an attesting witness. ( 7 ) THUS, the following questions arise for consideration : (1) Whether the lower Court is right in law in holding that the will in question is invalid ; (2) Whether the lower Court is justified in law in not considering the evidence of PW 4. ( 8 ) IN Beni Chand's (1) candsc it has been held by the Supreme Court thus :"there is no substance in the grievance that the proof of the will in this case is incomplete for want of an attesting witness's evidence. S. 68 of the evidence Act deals with proof of the execution of documents required by law to be attested. S. 68 of the evidence Act deals with proof of the execution of documents required by law to be attested. It provides that such documents shall not be used as evidence until at least one attesting witness has been called to prove the execution if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Since by s. 63 of the Succession Act, 1925, a will has to be attested by two or more witnesses, S. 68 of the Evidence Act would come into play and therefore it was incumbent on the propounder of the will to examine an attesting witness to prove due execution of the will. But this argument overlooks that Dwijendra nigam is himself one of the three persons who made their signatures below the thumb impression of Jaggo Bai. None of the three is described in the will as an attesting witness, but such labelling is by no statute necessary to a testamentary document as an attesting witness cannot take the place of evidence showing due execution of the document. By attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by S. 63 (c) of the succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. Nigam's evidence shows that he and the other two witnesses saw the testatrix putting her thumbmark on the will by way of execution and that they all signed the will in token of attestation in the presence of the testatrix, after she had affixed her thumb-mark on the will". Thus, it is clear that the witness need not be labelled as an attesting witness. What is required to be seen is as to whether the evidence of the witness reveals that he has signed the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. In the Instant case, the approach of the lower Court to the evidence of PW 2 is not from this point of view. In the Instant case, the approach of the lower Court to the evidence of PW 2 is not from this point of view. The evidence of PW 2 is not taken into consideration on the ground that he has not signed at the place intended to be signed by attesting witnesses, therefore, he cannot be considered to be an attesting witness. ( 9 ) IN another case, while dealing with the question as to who will be an attesting witness, the Supreme Court, in the case of m. L. Abdul Jabbar Sahib v. M. V. Venkata sastri (2), has observed as follows:"in every case the Court must be satisfied that the names were written animo attestendi. Evidence is admissible to show whether the witness had the intention to attest. The attesting witness must subscribe with the intention that the subscription made should be complete attestation of the will, and the evidence is admissible to show whether such was the intention or not"thus, it is clear that the place at which the signature or thumb-mark of a witness is subscribed to the document is not a determinative factor for holding that a witness is or not an attesting witness. What is to be seen is as to whether the evidence of such a witness goes to show that he has signed the document as an attesting witness, meaning thereby whether his evidence is to the effect that he has signed the document in the presence of the executant after seeing execution of the document or that he has signed the document after receiving the personal acknowledgment from the executant as regards the execution of the document. ( 10 ) IN the case of Girija Datt v. Gongotri datt (3) while dealing with the attestation of a will, the Supreme Court has made it clear that whether a particular witness is an attesting witness or not depends upon the evidence given by that witness. Thus, it is clear that the Court below should not have rejected the evidence of pw 2 merely on the ground that be has not signed the will in the place intended for the witnesses, without finding out from his evidence as to whether he can be regarded as an attesting witness. Thus, it is clear that the Court below should not have rejected the evidence of pw 2 merely on the ground that be has not signed the will in the place intended for the witnesses, without finding out from his evidence as to whether he can be regarded as an attesting witness. ( 11 ) A document which is compulsorily registerable is to be complete before it is presented for registration, whereas in the case of a document which is not compulsorily registcrable, it is enough for compliance with the rules of execution and attestation if the executant actually admits the execution before the Sub-Registrar and the identifying witnesses. A will is not compulsorily rcgisterable, therefore, it is enough if the testator admits the execution before the Sub Registrar and the identifying witnesses. In the case of makhan Mal L. Ram Ditto Mai v. Pritam devi (4), on consideration of the decision of the Full Bench of the High Court of allahabad in Lachman Singh v. Surendra bahadur Singh reported in AIR 1932 Allahabad 527 and also a Full Bench decision of the High Court of Madras in Veerappa chettiar v. Subramania. lyyar reported in air 1929 Madras 1 and distinguishing the decision of the High Court of Bombay in the case of Harikrishnadas Dharamsey v. Dwarkadas Gordhandas reported in AIR 1936 Bombay 94 and Timmayya Dundappa v. Channaya Appayya reported in AIR 1948 bombay 322, it has been held as follows :"the proposition canvassed is that under S. 63 of the Indian Succession act the will must be attested by two or more witnesses and that a Sub Registrar while registering a will presented to him by the testator cannot be regarded to be an attesting witness. The view which found favour with a Bench of the Lahore high Court in Parshotam Ram v. Kesho dass, AIR 1945 Lah. 3, which was followed in this Court in Gain Chand v. Surrindar Kumar, 1951 Pun. LR 251, is to the contrary. The view which found favour with a Bench of the Lahore high Court in Parshotam Ram v. Kesho dass, AIR 1945 Lah. 3, which was followed in this Court in Gain Chand v. Surrindar Kumar, 1951 Pun. LR 251, is to the contrary. It was laid down that where the will bore the signature of only one attesting witness when it was presented for registration, the signatares of the Sub-Registrar and of another person who were proved to have signed the will in the presence of the testator, though as registering authority or an identifying witness after its execution bad been admitted before them by the testator it must be regarded as sufficient compliance with S. 63. In the Bench decision of this Court the will was held not to have been duly executed because it was not proved as a question of fact that the sub-Registrar or the identifying witness had made their signatures on the will in the presence of the executant of the will". The following passage from the aforesaid Full Bench decision of the High court of Allahabad in Lachman v. Surendra (5) makes the position very clear :"we are of opinion that the argument is fallacious and should not be accepted. A will is not required by law to be registered. Thus, it might be enough for the compliance of the rule of execution and attestation if the testator actually admits execution before the Sub-Registrar and the identifying witnesses. Like a mortgage deed a will need not be, executed and attested first before it is presented for registration. Only two safeguards are needed for a will, namely, execution and attestation. If these are supplied at the registration, the requirements are fulfilled. The case of a will therefore is entirely different from a case of a mortgage and cannot be relied upon as a clear guide". In the case of Punnakkal Konnu Ammu v. Thekkekara Kunhunni Krishnan (6), after considering the decision of the various high Courts and also the aforesaid decision of the Punjab High Court (AIR 1961 Pun. 411), it has been held as follows:"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 witnesse,. 411), it has been held as follows:"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 witnesse,. But in a case where the document is a will which docs not require registration, the sub Registrar and the identifying witnesses, if they conform to the law regarding attestation, may become attesting witnesses". Thus, from the aforesaid decisions, it follows that in the case of documents which are not compulsorily registerable, the Sub Registrar and other identifying witnesses can be regarded as attesting witnesses if their evidence is in conformity with the law relating to attestation. In view of this, the Court below ought to have examined the evidence of PW 2 and PW 4 in order to find out whet her on the basis of the evidence given by them they can be regarded as attesting witnesses. The Court below has not even referred to the evidence of PW4. Thus, the order of the lower court suffers from serious infirmity in not considering the evidence of PW 2 and pw4. ( 12 ) SRI D. L. N Rao, the learned counsel appearing for respondent No. 1 submitted that this is a case in which enquiry has been held by the Court below and on the basis of the enquiry, the lower court has recorded a finding that the petitioner cannot be said to be the legal representative of the deceased Huchamma; therefore, it is not at all open for this court to interfere with the order of the lower Court in revision. In support of this contention, the learned counsel relied upon a decision of this Court in CRP 602 of 1974 (7) dt. I 7-1974. In the said decision, it has been held that this Court can interfere in revision under S. 115 of CPC against the order made under Or. 22, R. 4 of CPC read with R. 5, only where the court does not hold an enquiry and when an enquiry is held and an order is made, such an order cannot be questioned under s. 115 of the CPC, as there is no error of jurisdiction. In the aforesaid case, there was no question raised relating to the illegality committed in the exercise of jurisdiction. In the aforesaid case, there was no question raised relating to the illegality committed in the exercise of jurisdiction. It is also pertinent to note that holding of an enquiry and passing an order thereon means passing an order on consideration of the evidence recorded during the course of an enquiry. In the instant case, as already pointed out the lower Court has committed an illegality while exercising its jurisdiction in not considering the evidence of PW 4 and In rejecting the evidence of PW 2 under an erroneous view of law that PW 2 cannot be considered to be an attesting witness as he has not signed the will in the place intended for the signature of the attesting witnesses. This is clearly opposed to the decision of the Supreme Court referred to above. Thus, this is a case in which the decision of the lower Court is completely affected by the illegalities committed by the Court below which has resulted in miscarriage of justice. The order if allowed to stand would occasion a failure of justice. Therefore, the aforesaid decision of this Court in CRP 602 of 1974 (7) relied upon by the learned counsel for the respondent is not applicable to the present case. Though the learned counsel appearing for both the sides relied upon several decisions, but, in view of the conclusions reached by me, it is not necessary to refer to the same. ( 13 ) FROM what has been stated above, it follows that the lower Court was not justified in law in holding that the will is not valid. The lower Court was also not justified in not considering the evidence of pw 4. ( 14 ) MA No. 103 of 1976, as already pointed out, is connected with CRP No. 697 of 1977 and arises out of a common order. The lower Court has found that the petitioner has shown sufficient cause for setting aside the abatement because the petitioner caanot be considered to be the legal representative of the deceased Huchemma. Now that it is found that the order of the lower Court in that regard is not suitainable, MA No. 103 of 1976 will have to be allowed. Accordingly, it is allowed and IA No. I filed in OS No. 5 of 1972 for setting aside the abatement is hereby allowed. Now that it is found that the order of the lower Court in that regard is not suitainable, MA No. 103 of 1976 will have to be allowed. Accordingly, it is allowed and IA No. I filed in OS No. 5 of 1972 for setting aside the abatement is hereby allowed. ( 15 ) FOR the reasons stated above, CRP no. 697 of 1977 is also allowed and the order dt. 7 8-1976 passed on IA II in OS no. 5 of 1972 by the Civil Judge, Bellary, is set aside and the application IA II h remitted to the lower Court for fresh consideration in the light of the observation made in this order. In view of the fact that the lower Court as well as the parties to the proceeding have proceeded on a wrong conception of law relating to attesting witnesses, in the interest of justice, it is just and necessary to permit the parties to adduce further evidence if they desire to do so. Accordingly, it is made clear that it is open for the parties to adduce such further evidence as they desire to do so. --- *** --- .