Judgment :- Varghese Kalliath, J. These appeals are against the judgment in letters of administration proceedings, converted as a suit O.S. No.4 of 1990. The second plaintiff is the appellant in M.F.A. No. 631 of 1992 and plaintiffs 1, 3 and 4 are the appellants in M.F.A. No. 561 of 1992. In M.F.A. No. 631 of 1992, the appellant has arrayed plaintiffs Nos. 1, 3 and 4 as respondents. Similarly, in M.F.A. No. 561 of 1992, the second plaintiff is also a respondent. Both these appeals can be disposed of by a common judgment. 2. The short facts necessary for the disposal of these appeals are these: - Plaintiffs and defendants are the children of Mathai and Rahelamma. They executed their last will and testament on 14-5-1979 and got the will registered on 15-5-1979 at Aranmula Sub Registry Office. The father died on 30-8-1984 and the mother on 19-1-1980. The testator, the father and the testatrix, the mother, had seven children - six sons and one daughter. The third defendant is the only daughter. Defendants 1 and 2 and plaintiffs are the sons of the testator and the testatrix. 3. The plaintiffs submitted that the will produced is the duly executed last will of their father and mother and that the will has been executed after complying with all the statutory formalities required for the execution of a will and that the will has been duly registered by their parents. No executors/ executor are/is appointed in the will and so an application filed for probate was converted into letters of administration proceedings and finally since a caveat had been lodged by the first counter petitioner, the petition was converted into a suit. 4. The first defendant contested the suit. The contentions in brief are these: Technical and substantial contentions were raised. It was contended that the probate proceedings is not the proper proceedings since no executor was appointed in the will. This contention has no significance now, since the proceedings have been converted into letters of administration proceedings and finally converted as stated earlier, into a suit. 5. The first defendant raised the contention that since the entire properties included in the will are not scheduled in the petition, the petition is defective. This contention has no significance now, since the proceedings have been converted into letters of administration proceedings and finally converted as stated earlier, into a suit. 5. The first defendant raised the contention that since the entire properties included in the will are not scheduled in the petition, the petition is defective. Further, it is contended that at the time of execution of the alleged will, the testator the father and the testatrix, the mother had disposed of their entire properties included in the will and that the first defendant had become the absolute owner and in possession of schedule items 1,2 and 4 and the western 32 cents north to south, of schedule item No. 3 and the building in that property. Further, he contended that he is residing in that building. He also submitted that the plaintiffs are in possession of the respective properties allotted to them under an Udampady of 1972 as absolute owners. The third plaintiff is entitled to eastern 25 cents of item No.3 scheduled in the petition. The case of the first defendant is that the Udampady dated 18-3-1972 was accepted by the donees and the Udampady has taken effect, cannot be revoked. The life interest reserved in the Udampady has come to an end on the death of the executants of the Udampady. 6. It was then contended that at the time of the alleged will, the testator and testatrix had no sound disposing mind and that the alleged will is a spurious document and that the mother and father were defrauded and unduly influenced by the plaintiffs in executing the will. The first defendant also contended that the cancellation deed by which the Udampady was cancelled is a void document. The first defendant also contended that the valuation of the properties made in the proceedings is not correct. 7. The court below tried the matter as a suit treating the petition as the plaint and the caveat as the written statement. After considering the evidence and the circumstances unfolded in the case, the court ultimately came to the conclusion that Ext. Al will cannot be considered as a genuine will as defined under S.2(h) of the Indian Succession Act, and refused the prayer for letters of administration. After considering the evidence and the circumstances unfolded in the case, the court ultimately came to the conclusion that Ext. Al will cannot be considered as a genuine will as defined under S.2(h) of the Indian Succession Act, and refused the prayer for letters of administration. The court also found that the plaintiffs failed to prove the due execution of the will and also failed to remove the suspicions surrounded in Ext. Al will. The suit was dismissed. 8. Plaintiffs are aggrieved by the judgment of the court below. Plaintiffs 1,3 and 4 have filed M.F.A. No. 561 of 1992 and second plaintiff has filed M.F.A. No. 631/92. Counsel for appellants in M.F.A. No. 561 of 1992, the appellant in M.F.A. No. 631 of 1992 and counsel for first respondent argued the case very elaborately and ably. We feel that we are obliged to consider and discuss all the questions raised by the parties. We shall discuss first the technical questions raised by counsel for the first respondent. 9. He submitted that the petition filed by the plaintiffs without scheduling the entire properties included in the will is not maintainable and on that short ground, the plaintiffs (petitioners) are not entitled to Letters of Administration. 10. Certainly, in the caveat, this contention has been taken by the first counter petitioner (first defendant). It is not disputed that the entire property included in the will is not scheduled in the petition. The question is whether this defect is fatal or not. Counsel submitted that the court ought not have adjudicated the validity of the will in proceedings for letters of administration since the entire properties included in the will have not been scheduled in the application. The application for letters of administration with the will annexed is governed by S.276 of the Indian Succession Act, 1925, hereinafter referred to as "The Act'. S.276 of the Act provides that application for probate or for letters of administration with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the court in which the application is made with the will or in the cases mentioned and stating. S.276 of the Act provides that application for probate or for letters of administration with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the court in which the application is made with the will or in the cases mentioned and stating. (a) the time of the testator's death, (b) that the writing annexed is his last will and testament, (c) that it was duly executed, (d) the amount of assets which are likely to come to the petitioner's hands, and (e) when the application is for probate, that the petitioner is the executor named in the will. U.S.278 of the Act deals with petition for letters of administration. This section lays down the requirements of a petition for letters of administration as contrasted with, and distinguished from, an application for probate or letters of administration with the will annexed, dealt with in S.276. In this section also clause (d) provides that the application should contain a statement regarding the amount of assets which are likely to come to the petitioner's hands. From the statutory provisions - S.276 and 278 of the Act, itis clear that there is no mandatory direction that the petition for letters of administration should contain the entire assets scheduled in the will. The sections also do not provide any provision for dismissal of the application for the reason that the entire assets shown in the will are not scheduled in the petition. 12. Though several decisions have been referred to us on this aspect of the matter, we think that the position is made clear by a Division Bench decision of this court reported in 1974 K.L.T 865 (Lakshmikutty Amma v. Sreedevi Antharjanam). This case was one for the grant of letters of administration with the will annexed. Two contentions were raised before the Division Bench. The first contention was that the letters of administration to the will annexed cannot be granted. We are only concerned about that contention. In dealing with this contention, the Division Bench observed thus: - "There is little doubt that the general rule and principle is that Letters of Administration with the will annexed must relate to the entirety of the property disposed of by the will, and cannot relate to a part of the estate. We are only concerned about that contention. In dealing with this contention, the Division Bench observed thus: - "There is little doubt that the general rule and principle is that Letters of Administration with the will annexed must relate to the entirety of the property disposed of by the will, and cannot relate to a part of the estate. The authorities have been collected and surveyed in a number of decisions, of which it is enough to note In T.K. Parthasarathi Naidu (A.I.R 1955 Mad. 411), Ramawamy lyengar v. Lakshmi Narasimhan & Others (A.I.R 1965 Mysore 87), and Vrindavanlal Goverdanlal Potti & Others v. Smt. Kamala Bai Goverdanlal & Others ( A.I.R 1970 And. Prad.109). The Madras decision has noticed the principle which has been stated in "Williams: On Executors and Administrators'. (Fourteenth Edition) at page 137 as follows: - "If there are several executors appointed with distinct powers, as one for one part of the estate, and another for all other purposes, probate is usually granted to the latter, if he is the first to apply, save and except mat special purpose or specific part of the estate. If it is the limited executor that applies first, he will obtain his limited grant and the other may take probate caetororum. If both apply simultaneously, the grant may be made in the same instrument, the powers of the respective executors being distinguished". It is clear from these decisions, that the court is not entirely without jurisdiction to make a grant of letters or administration with the will annexed, limited to part only of an estate". (emphasis added). 13. In deference to counsel for the first defendant, we refer to the decisions cited by him. The decision reported in A.I.R 1970 A.P. 109 (Vrindavanla v. Kamala bai) deals with the case of grant of probate. The Division Bench observed that probate in respect of a portion of the property can be granted in special circumstances. The reason stated is: "the general rule is that a probate should be granted in respect of the entire estate of the deceased because under S.211, the entire estate of the deceased vests in the executor appointed by the will". 14. In A.I.R 1955 Madras 411 (In re T.K. Parthasarathi Naidu) the court held that the general rule is to apply for letters of administration for the entire property. 14. In A.I.R 1955 Madras 411 (In re T.K. Parthasarathi Naidu) the court held that the general rule is to apply for letters of administration for the entire property. There are circumstances indicated for the grant of letters of administration for portion of the property. A.I.R 1975 Madras 342 (Hepzibah Annathai k R. ananthalakshmi ) also has taken the view that the entirety of the property should be shown in the letters of administration. 15. However, we do not want to discuss this matter elaborately since we feel that the Division Bench of this court in 1974 KLT 865 has held that the court is not totally devoid of jurisdiction in the matter of granting probate even if the entire property scheduled in the will is not included in the application. Of course, the learned District Judge relying on S.232 of the Act held that the petition for letters of administration without scheduling the whole property covered by Ext. Al will is not maintainable. We feel that S.232 is not the appropriate section that is applicable in this case. In view of the decision reported in 1974 KLT 845, we disagree with the learned District judge and we hold that it will be unjust to dismiss the suit on this technical ground. 16. Counsel for the first defendant submitted that the court below ought to have rejected the application for the simple reason that the application is filed for probate and the application that ought to have been filed considering the fact that no executor was appointed in the will is for letters of administration. Since the court below has converted the application for probate into an application for letters of administration, we do not think that at this stage, we should take up this hyper technical contention and refuse to adjudicate the matter. 17. It was contended that the properties dealt with are the subject matter of an Udampady dated 18-3-1972 Ext. B 3 and that the children of the testator and the testatrix were dealing with the property scheduled in the will as per Ext. B3 Udampady. According to the appellants, the udampadi Ext. B3 executed by the father and mother of the plaintiffs and defendant contained certain obligations to be fulfilled by the contesting first defendant and that the first defendant failed in discharging those obligations, which resulted in cancelling the udampadi by Ext. A2, Ext. B3 Udampady. According to the appellants, the udampadi Ext. B3 executed by the father and mother of the plaintiffs and defendant contained certain obligations to be fulfilled by the contesting first defendant and that the first defendant failed in discharging those obligations, which resulted in cancelling the udampadi by Ext. A2, Ext. A2 is dated 14-5-1979. The will is also dated 14-5-1979. Of course, counsel for the first defendant did not press the point that this court or the court which tried the case is bound to consider or adjudicate the title of testator and testatrix with respect to the properties dealt with in the will. So, the consequence of the udampadi and the effect of the cancellation of the udampadi are not matters which can be adjudicated in this proceedings. 18. There are number of decisions to the effect that the probate or a letters of administration court is not called upon to adjudicate the title of the property/ properties dealt with in a will. The jurisdiction of the probate or letters of administration court is a special jurisdiction and it confines to the legality, genuineness and such other matters regarding the will sought to be proved before the probate or letters of administration court. We would say, counsel rightly submitted that the fact that the properties are the subject-matter of the udampadi Ext. B3 and by the operation of that udampadi, at the time of the execution of the will, the testator and the testatrix had no title, is not a matter, which would affect the jurisdiction of the court adjudicating the genuineness and legality of the will. In this context, we would like to say that the learned District Judge of course observed that the 'only question the court is todetermine is whether the will had been, genuinely made by the testator out of his free volition, whether it had been properly executed and attested in accordance with law and whether the testator had the capacity to execute it." The learned District Judge referred to the definition of the will under S.2(h) of the Act and emphasised that the will means the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. Though the learned District Judge did not say specifically that the title of the property covered by the will is a question to be decided in the probate or letters of administration proceedings, the District Judge finally said that Ext. Al cannot be considered to be a genuine will as defined in S.2(h) of the Act. We make it clear that it is trite law that under probate or letters of administration proceedings, court is not called upon to adjudicate the title of the property dealt with in the will. In fact, learned counsel Shri P. Sukumaran Nayar did not controvert this proposition of law. 19. The next technical contention raised by counsel for respondent is that the proceedings is a transparent device to obtain a decision regarding the title to the properties covered by the will. We do not think that there is any merit in this contention. In fact, there is no plea that the title of the properties has to be considered. Of course, it has been brought in evidence that the properties dealt with in Ext. Al will are the subject matter of an udampadi. This circumstance alone will not be sufficient for saying that the proceedings initiated by the plaintiffs for proving the will and to obtain letters of administration is a transparent and lucid device to get a decision regarding title of the property. Naturally, such a device will be defeated by the court plainly refusing to adjudicate the title. We see no merit in this contention. 20. Now, we propose to consider the merits of the case. Before discussing the evidence regarding the genuineness of the will and also as to the fact whether the will has been executed complying with the due formalities required under law, we would like to refer to certain norms the court should bear in mind in appreciating the evidence adduced by the parties in applications for letters of administration with the will annexed or probate. One principle that has to be kept in mind is that for deciding the material questions of fact, which arise in applications for probate or actions on will, no hard and fast inflexible rule can be laid down for the appreciation of evidence. One principle that has to be kept in mind is that for deciding the material questions of fact, which arise in applications for probate or actions on will, no hard and fast inflexible rule can be laid down for the appreciation of evidence. The propounder of the will haw to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will, the propounder must remove that suspicion from the mind of the court by cogent and satisfactory evidence. It must also be remembered mat the result of the application of the above two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. Vide - A.I.R 1959 SC 443 (H.Venkatachala v. B.N. Thimmajamma) and A.I.R 1946 PC 156 (Harmese v. Hinkson). 21. Now, with regard to the proof of the will, it is apposite to quote the observations of Gajendragadkar, J. in A.I.R 1959 SC 443: "The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Ss.67 and 68 of the Evidence Act are relevant for this purpose. Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting and for proving such a handwriting under S.45 and 47 of the Act, the opinion of experts and of persons acquainted with the handwriting of the person concerned are made relevant. S.68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Ss.59 and 63 of. the Indian Succession Act are also relevant. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Ss.59 and 63 of. the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters". (emphasis added) 22. The further fact to be remembered is that the propounder is under an obligation 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 that he understood and put his signature on the document of Iris own free will. Ordinarily, when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts are justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated. 23. Now, we may refer to one important aspect, which always received serious consideration by courts in adjudicating the validity of a will. This is what is known as the suspicious circumstance surrounding the execution of the will. In the decision we have already referred to ( A.I.R 1959 SC 443) Gajendragadkar, J. observed thus: - "and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear "to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicions circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators, but, even without-such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter". 24. Now we turn to the will. Ext. Al is the will. It is dated 14/5/1979. It is a registered will. The will is executed by the father and mother together. Before considering whether the will has been executed after satisfying all the requirements under the statute, for a moment, we assume that all the statutory formalities have been complied with for the purpose of examining whether the will is otherwise bad; say that it is not genuine, whether it is surrounded by suspicious circumstances, whether it is the result of undue influence and coercion and also the question whether at the time when the will was executed, the testator and testatrix had sound and disposing state of mind, whether the will has been executed with the free mind of the executors. 25. First, we will consider the question of genuineness of the will, when we say that we are examining the genuineness of the will, we only mean that whether the will has been signed by the testator and testatrix knowing that they are executing a will. Of course, this question has got real significance as to the other aspects we have to consider like suspicious circumstances and the sound disposing state of mind of the testator and testatrix. 26. In this context, we have to bear in mind that the will is a registered will and it has been registered by the executors presenting the document before the Registrar in his office. 26. In this context, we have to bear in mind that the will is a registered will and it has been registered by the executors presenting the document before the Registrar in his office. The father died on 30-8-1984 and the mother on 19-1-1980. It is also relevant to note that the first defendant the eldest son of the executors of the will alone contested the case. D.W. 2 is the first defendant. Admittedly, the father lived after the execution and registration of the will for about 5 years and the mother lived for more than six months. D. W. 2 deposed that the mother on no occasion, was laid up with 27. D.W.2 has filed an objection in the form of an affidavit to I.A. No. 156/91. This objection is dated 13th day of March, 1991. In paragraph 5 of the objection he has stated that "the will is executed by my parents". In paragraph 8 he has stated that "at the time of the alleged will mentioned in the original petition, the testators, who executed the same (emphasis added) have no right and possession over the properties included in the will and scheduled in the original petition. At the time of the will, the testators have no disposable interest over the properties included in it". 28. From what we have quoted from the affidavit, it is plain and clear that the first defendant has no case that the will has not been executed by his father and mother. Considering the fact that the only contesting defendant, the eldest son of the executors of the will with whom the executors were living plainly admits in the affidavit that the will has been executed by his parents and that the will is a registered will, we find it difficult apart from the legal lacings as to the due execution and proof of the will to say Ext. Al is not a genuine document in the sense that Ext. Al does not contain the signatures of the parents of plaintiff and defendants. 29. Now we propose to deal with the question of the disposing state of mind of the executors. The important case of the first defendant is that the parents had no right to execute the will. It is not a case that the parents had no physical and mental capacity to write a will. 29. Now we propose to deal with the question of the disposing state of mind of the executors. The important case of the first defendant is that the parents had no right to execute the will. It is not a case that the parents had no physical and mental capacity to write a will. The first defendant said that the parents have no right to execute the will only to indicate that over all the properties dealt with in the will the parents had no title or ownership. Moreover, it has to be noted that the first defendant has admitted that Ext. Al will is one executed by his parents. It is registered by presenting the same before the Registrar's Office by the executants. Though the exact distance from the house where the parents lived to the Registrar's office is not in evidence, it is a fact that both of them have gone to the Registrar's office for the purpose of registering the will. Further it has to be noted that the first defendant has deposed that he was living with the father and mother till their death. So, naturally if somebody coerced or influenced the parents there is every possibility of the first defendant knowing it then and there. It has to be noted that the old parents on the same day executed another document a cancellation deed and got it registered. This is also an added circumstance which indicates that the parents was capable of understanding things they were doing and had a fair disposing state of mind at the time they executed the will. It is significant to note that there is clear evidence as to the fact that the first defendant came to know the execution and registration of cancellation of the Udampady immediately after the registration. He has applied for a copy of the cancellation deed Ext. A2. Normally the Registrar also will take note of the apparent state of mind before a document like a will is registered. These circumstances, we feel, are sufficient for us to say that the will was executed by the parents after taking a decision voluntarily and exercising a free mind, how their properties have to be disposed of after their death. In short, we feel that Ext. Al cannot be successfully attacked on the ground that the executors had no disposing state of mind when Ext. In short, we feel that Ext. Al cannot be successfully attacked on the ground that the executors had no disposing state of mind when Ext. Al was signed by the parents. This finding, we *feel, is fortified and strengthened by the case set up by the contesting first defendant giving more importance to the fact that the 1st defendant has admitted that the will is that of the parents, and his only serious contention is that the parents had no right over the properties included in the will. 30. Now we shall advert to the question of any suspicious circumstance. We have already adverted to the physical and mental condition and the other attendant circumstances relevant to the execution of the will by the parents. Those circumstances 'may not be sufficient for the court to hold that the will is surrounded by suspicious circumstances. Of course it is a fact that simultaneous to the execution of" the will, the parents have cancelled Ext. B3 Udampady. We do not want to go into the circumstances which led to the cancellation of Ext. B3. The propounders have attempted to give evidence to justify the action of the parents cancelling Ext. B3. We do not want to decide the question of the validity of the cancellation of Ext. B3 and the further question of the title to the property to the executors of the will. 31. The usual and normal circumstances which will generate serious suspicion in the mind of the court as to the volition of the executors of the will, is the abnormal and unjustifiable disposition of the properties by the testator or testatrix. Of course, in this case, the major share is given to the contesting defendant though under Ext. B3 he had been given more properties. Excepting the daughter who had been given substantial amount during the time of her marriage, all the other children were given properties under the will. At any rate no undue preference is shown to the propounders of this will by the parents. In these circumstances, we feel that we cannot say that the will is invalid on account of the fact that there are suspicious circumstances surrounding the will. 32. Now, we have to consider two important points advanced by counsel for the respondents. At any rate no undue preference is shown to the propounders of this will by the parents. In these circumstances, we feel that we cannot say that the will is invalid on account of the fact that there are suspicious circumstances surrounding the will. 32. Now, we have to consider two important points advanced by counsel for the respondents. He submitted that though the will is a registered will, it is not executed satisfying all the conditions required for the execution of the valid will. His submission is that there are no attesting witnesses, even if the contesting defendant admits that the testator and the testatrix have executed the will, the court should not act on a will which does not comply with the statutory formalities and so should not direct the grant of letters of administration. 33. S.63 of the Act deals with the execution of wills. S.63 of the Act reads thus: - "63. Execution of unprivileged wills: -Every testastor, not being a soldier employed in an expedition nor engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules: (a) (b) (c) 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 testatrix, or has received from the testator a personal acknowledgement 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". In Ext. Al, there are seven sheets of paper. In all these sheets of paper both the testator and the testatrix have signed. On the reverse of the first sheet both the testator and the testatrix have signed and the Registrar has made his endorsement. As identifying witness one Prathapan has signed, who was examined in this case as PW3. In the last sheet two persons have signed as witnesses. Raman Narayanan has signed as witness No.1. He has described himself as licencee AD/B 153. As identifying witness one Prathapan has signed, who was examined in this case as PW3. In the last sheet two persons have signed as witnesses. Raman Narayanan has signed as witness No.1. He has described himself as licencee AD/B 153. Then one P.K. Sivarama Pillai has signed as witness No. 2 (He has not been examined since he was not well). He has described himself as the person who has written Ext. Al and has given his licence number. Counsel for the first defendant submitted that the two witnesses signed in Ext. Al are not attesting witnesses. Both the witnesses lack ammo attestandi and so they cannot be considered as attesting witnesses. Appellant in M.F.A. No. 631/92 submitted that both the witnesses are attesting witnesses and further the identifying witness Prathapan and also the Registrar can be considered as attesting witnesses in the circumstances of the case. Further he submitted that if this Court is satisfied about the genuineness of the will and that the will is beyond reproach for reasons known to law and recognised by law, the court will be slow and hesitant to reject a registered will on the technical ground that though there are two witnesses signed in the will they had no ammo attestandi. We will never forget when we examine the question of proof of the will the requirement that the attesting witness examined should satisfy the court that the witnesses signed the will to bear witness to the fact that the signature of the testator was made or acknowledged their presence. 34. Now we are only concerned with the question whether the document Ext. Al taken without evidence at all can be rejected as not a will since there are no attesting witnesses. We may not be wrong in saying that no form of attestation is prescribed by statute, but it is necessary that the witness should put his signature with the intention of attesting it and the attestation must follow execution, and not precede it - vide Pemander v. Alves, I.L.R 3 Bombay 322 and in the matter of Hemleta Deebee I.L.R 9 Cal 226. We also think it correct that a witness to be attesting witness need not be labelled as attesting witness and the place at which the signature or thumb mark of witness is subscribed to the document is not decisive to hold whether witness was or was not an attesting witness. A mere perusal of the document Ext. Al it is difficult to say that there is noncompliance with the provisions contained in S.63 of the Act. The fact that both the witnesses have given their identifying description referring to their licence numbers and one of the witnesses saying that he is the person who has prepared the document may not be sufficient to say that those witnesses are not attesting witnesses. Counsel for the first defendant very strenuously argued that the second witness can never be treated as an attesting witness, since he has signed not as a witness, but as a person who has written the document. But it has to be noted that in the document it is stated that he is the second witness. We see no reason to be so technical to say that since the witness has written words indicating that he is the person who has written the document will loose his character as a witness. It is not necessary for the witnesses who are attesting the document to declare in the document itself that they are attesting witnesses. 35., In A.I.R 1977 SC 63 (Beni Chand v. Kamala Kunwar) the Supreme Court observed that 11.11 ..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 labeling 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 documents. In A.I.R 1969 SC 1147 (M.L. Abdul Jabbar Sahib v. M. V. Venkata sastri ), the Supreme Court said: "In every case the Court must be satisfied that the names were written ammo attestandi. Evidence is admissible to show whether the witness had the intention to attest. In A.I.R 1969 SC 1147 (M.L. Abdul Jabbar Sahib v. M. V. Venkata sastri ), the Supreme Court said: "In every case the Court must be satisfied that the names were written ammo attestandi. 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". In A.I.R 1955 SC 346 (Girija Datt v. Gangotri Datt), the Supreme Court made it clear and plain that a particular witness is an attesting witness or not depends upon the evidence given by that witness. 36. It is also pertinent to note that a will is not compulsorily registerable and a distinction has to be kept in mind in understanding the rigours of requirements of attestation and its proof. It is well settled that a document which compulsorily requires registration has to be completed before it is presented for registration. The position is different in the case of documents which are not compulsorily registerable. In such cases, 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. It is possible to say that a will is not being compulsorily registerable, it is enough if the testator admits the execution before the Sub Registrar and the identifying witness. 37. In A.I.R 1961 Punjab 411 (Makhan Mai L. Ram Ditto, Mai v. Pritam Devi) Grover, J. as he then was speaking for a Division Bench posed the question thus: '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". 38. After an elaborate discussion of the case law, the Division Bench of the Punjab High Court held that "the learned trial judge was justified in coming to the conclusion that the will, Ext. D24 had been duly attested by Amar Singh and the Sub-Registrar, Gurvachan Singh". 38. After an elaborate discussion of the case law, the Division Bench of the Punjab High Court held that "the learned trial judge was justified in coming to the conclusion that the will, Ext. D24 had been duly attested by Amar Singh and the Sub-Registrar, Gurvachan Singh". In the same decision, referring to the judgment of the Lahore High Court reported in A.I.R 1945 Lah 3 (Parshotam Ram v. Kesho Dass) His Lordship said that it should be borne in mind that there is a distinction in the matter of attestation in wills and in documents required to be attested and required to be compulsorily registered. That rigid compliance of the requirement of attestation of non-testamentary instruments of alienation creating rights in the property is not demanded in cases of testamentary instruments. In a Full Bench decision of the Allahabad High Court reported in A.I.R 1932 All 527 (Lechman Singh v. Surendra Bahadur Singh), the court observed: "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 witness. 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". 39. It is significant to note that in a Bench decision of the Bombay High Court reported in A.I.R 1921 Bombay 156 (Theresa v. Francis J. Misqutid), Poweett, J. was "clearly of the opinion that where a testator admitted execution of the will before a Sub Registrar and affixed his thumb impression, there was a proper execution of the will, apart from the question whether there was such proper execution before". 40. In A.I.R 1965 Kerala. 32 (Punnakkal Konnu Ammu v. Thekkekara Kunhunni Krishnan), this court held thus; "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 witnesses. 40. In A.I.R 1965 Kerala. 32 (Punnakkal Konnu Ammu v. Thekkekara Kunhunni Krishnan), this court held thus; "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 witnesses. But in a case where the document is a will which does not require registration, the Sub Registrar and the identifying witnesses, if they conform to the Law regarding attestation, may become attesting witnesses". 41. S.40 of the Indian Registration Act refers to persons entitled to present wills and authorities to adopt. The testator can also present the will to a Registrar or Sub Registrar for registration. S.41(1) of the Indian Registration Act provides that: "A will presented for registration by the testator may be registered in the same manner as any other document.' S.41 (2) provides that in the case of registration of a will presented for registration by any other person entitled to present it shall be registered if the Registering Officer is satisfied (a) that the will or authority was executed by the testator or donor, (emphasis added ) as the case may be, (b) that the testator or donor is dead; and (c). that the person presenting the will or authority is, under S.40, entitled to present the same. From S.41 of the Indian Registration Act, it is clear that if a will is sought to be registered by presenting it by the testator, it has to be registered in the same manner as any other document. Detailed procedure is prescribed for registration of documents. S.34 of the Indian Registration Act is significant. It is provided in clause (1) of S.34 of the Indian Registration Act that no document shall be registered under the Act, unless the persons executing such document appear before the registering officer within the time allowed for presentation under Ss.23, 24, 25 and 26. S.34 of the Indian Registration Act is significant. It is provided in clause (1) of S.34 of the Indian Registration Act that no document shall be registered under the Act, unless the persons executing such document appear before the registering officer within the time allowed for presentation under Ss.23, 24, 25 and 26. S.34(3) of the Indian Registration Act provides that the registering officer shall, on presentation of the document after satisfying all the formalities, "fa) enquire whether or not such document was executed by the persons by whom it purports to have been executed: (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document and (c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear". (emphasis added) 42. S.35 of the Indian Registration Act prescribes the procedure on admission and denial of execution respectively. S.35(1)(a) provides that "If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent to be, and if they all admit the execution of the document the registering officer shall register the document as directed in Ss.58 to 61". S.58 of the Indian Registration Act deals with the procedure on admitting to registration. On every document admitted to registration, other than a copy of a decree or order or a copy sent to a registering officer under S.89, there shall be endorsed from time to time the following particulars, namely: - (a) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent. S.59 of the Indian Registration Act mandates that the registering officer shall affix the date and his signature to all endorsements made under Ss.52 and 58 relating to the same document and made in his presence on the same day. S.59 of the Indian Registration Act mandates that the registering officer shall affix the date and his signature to all endorsements made under Ss.52 and 58 relating to the same document and made in his presence on the same day. Under S.60 of the Indian Registration Act after complying with such of the provisions of Ss.34, 35, 58 and 59 as apply to any document presented for registration the registering officer shall endorse thereon a certificate containing the word "registered", together with the number and page of the book in which the document has been copied. S.60(2) of the Indian Registration Act provides that such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by the Act, and that the facts mentioned in the endorsements referred to in S.59 have occurred therein mentioned. The certificate under S.60(2) of .the Indian Registration Act is admissible to prove the facts mentioned in the endorsements, namely, the facts set forth in S.52(1) (a) and S.58(1). It has to be remembered that a certificate of registration endorsed on a document is prima facie evidence that the requirements of the Act have been complied with and it is for the party who challenges the registration to prove any act or omission which would invalidate the registration. It is true that the mere registration of a document, selectively a will is not sufficient proof of its due execution, but the certificate endorsed by the registration officer on the document is admissible to prove that the executant was of sound mind vide A.I.R 1962 A.P. 29 (Venkata Rama Rao v. Ehaskararad). In a Madras decision reported in A.I.R 1973 Mad. 421 (Irudayam Animal & Others v. Salayath Mary) it has been held that registration by itself in all cases, is not proof of execution, but if no other evidence is available, the certificate of the registration is prima facie evidence of its execution and the certificate of the registering officer under S.60(2) is relevant for proving execution. A certificate of registration requires no further proof and the evidence of the Registrar is not necessary. Its genuineness must be presumed under S.79 of the Evidence Act - see A.I.R 1963 Raj. A certificate of registration requires no further proof and the evidence of the Registrar is not necessary. Its genuineness must be presumed under S.79 of the Evidence Act - see A.I.R 1963 Raj. 235 (Govind Ram v. Abdul Wahab) - We are not unmindful of the fact that the certificate would not enable the court to presume animus et factum (combination of intention with the act) on the part of the executant - see A.I.R 1977 Kerala 54 (Beepathumma and Others v. Mohamed Nakoor Meera Rowther and others). It is conceivable with the aid of Illustration (e) of S.114 of the Evidence Act the court could also presume that the official act of registration has been regularly performed and that the facts mentioned in the endorsements have occured as mentioned therein. Certainly we cannot forget the fact that we are dealing with the proof of a will for which a particular mode of proof is prescribed in S.68 of the Evidence Act. 43. We feel that it is not wholly unnoteworthy to think that the certificate under S.60 of the Indian Registration Act endorsed on the deed by the registering officer under S.60(2) is a relevant piece of corporative evidence for proving its execution - see A.I.R 1978 P & H 285 (Shiv Dasa and Others v. Smt. Devki and others) and A.I.R 1977 Ker. 41 (Kunhamina Umma & others). In A.I.R 1952 Mysore 119 (Revanna v. Ranga Rao ), it has been held that where the executant is dead, it may give rise to a presumption about the genuineness of the deed. We may conclude the discussion with reference to Registration Act, referring to the duties of registering officers when a document is presented. S.52 of the Indian Registration Act deals with the duties of registering officers. It reads thus: "52. (1)(a) The day, hour and place of presentation and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it: (b) a receipt for such document shall be given by the registering officer to the person presenting the same; and (c) subject to the provisions contained in S.62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefore according to the order of its admission. (2) All such books shall be authenticated at such intervals and in such manner as is from tune to time prescribed by the Inspector General". 44. The case of the respondent herein that the will, Ext. Al produced by the plaintiffs is invalid even on a perusal of the will since the statutory requirements for a will are absent, cannot be accepted. We are of opinion that the case that there are no two attesting witnesses in the will cannot be accepted for the reasons and circumstances we have already adverted to. Counsel for the appellants in M.F.A. Nos. 561 & 631/92 submitted that the invalidity of the will on account of the fact that the contents of the document alleged to be a will do not satisfy the requirements of a will as such is not taken in the caveat which formed the written statement in the suit and so it is not open to the respondent to contend that no letters of administration can be given on such a document. We have discussed the matter in extenso and we do not think that the respondent is precluded from taking the contention that the Will does not satisfy the requirements of law. 45. The next question that has to be considered is as regards the proof of the will. Of course, in considering the question of proof of the will, also we are bound to consider whether the witnesses seen signed in the will are really attesting witnesses. We now turn to discuss the question of proof of the will. 46. There are two persons signed in the will stating only that they are witnesses. Over and above the two persons signed as witnesses, the Registrar has signed in the endorsements and one Prathapan (PW 3) also has signed. It is reasonable to think that Prathapan has signed as the identifying witness. Out of the two witnesses signed, the first witness and Prathapan have been examined. 1st witness is PW2. The provision of law regarding proof of a will is contained in S.68 of the Evidence Act. It is reasonable to think that Prathapan has signed as the identifying witness. Out of the two witnesses signed, the first witness and Prathapan have been examined. 1st witness is PW2. The provision of law regarding proof of a will is contained in S.68 of the Evidence Act. It provides that if a document is required by law to be attested, it shall not be used 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. It is also provided that it shall not be necessary to call an attesting witness in proof, of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. So it is mandatory that at least one attesting witness has to be called for the purpose of proving the execution of the will if one attesting witness is alive. It is clear that it is necessary to call only one of the attesting witnesses and that if two witnesses are alive, both need not be called. The requirement that at least one attesting witness has to be called if one attesting witness is alive is an imperative provision. 47. PW. 2, the first witness in the will has signed describing himself as ADB 153 licensee. In his examination in chief, he said that the executants of Ext Al will signed in- his presence. He has also said that at the time when they have signed no-body prompted or influenced the executant to sign. He has said that the will was written in his office at Chengannur. Further he has said that the will was executed on the basis of a draft. In cross examination he said that he saw the executors signing on the second page of the will (with reference to the signatures in the endorsements at the time of registration) and that the executors have signed on that page in the presence of the Sub-Registrar. He said that he was not a witness in the endorsements on page 2 of the will. He said that he was not a witness in the endorsements on page 2 of the will. In fact what is necessary for finding ammo attestandi in regard to PW2 is satisfied when he said that he has signed the will and that he has seen the executants signed the will. What is required for an attesting witness is to seen the executants signing and thereafter person himself signs the document as a witness. Counsel for the respondent submitted that for a will two attesting witnesses are necessary. So, the witness examined to prove the ill has to depose before the court that the other witness also signed the will in his presence and that the other witness has seen the executants signing the will. It is contended that PW 2 has hot said so. It is true that PW.2 has not said so. But PW.2 said that the second witness also has signed the will. But PW 2 said that he has signed the will as the person who has scribed the will. That statement he has made, we feel, obviously referring to the description of his name in the will wherein the second witness has described himself as a scribe. We quote what has been deposed by PW 2 on this aspect 48. The requirement under S.63(c) of the Act is relevant in this context. It provides that 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... 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. To attest is to bear witness to the fact; the witness in a will bear witness to the fact the signature of the testator was made or acknowledged in their presence. (See Chandran v. Jamuna (A.I.R 1946 Cal.163) 49. PW.2 is not the scribe, but he is the person who has prepared the will. The second witness, Sivarama Pillai is the scribe. Plainly PW.2 has said that in his presence, the executors signed. (See Chandran v. Jamuna (A.I.R 1946 Cal.163) 49. PW.2 is not the scribe, but he is the person who has prepared the will. The second witness, Sivarama Pillai is the scribe. Plainly PW.2 has said that in his presence, the executors signed. A reading of the entire evidence of PW.2 would show that immediately after the executors have signed the will, he has also signed the will. It has come out in evidence that the will was written in the office of PW.2 and from the will it is clear that it was written on 14-5-1979. A reading of the entire evidence would show that the witness PW.2 has signed it to bear witness to the fact that the executions have signed. The sequence of his statement would make it clear that after the executant signed, the witnesses also signed the document. Little bit of vagueness is seen in the evidence of PW.2. PW.2 has said that he has signed the document as a witness and says that the second witness has signed as a scribe. He says so, only on account of the fact that the second witness in the will has described himself as the scribe. A scribe also can be an attestor. If PW.2, the first witness in the will is an attestor, the description of Sivarama Pillai as second witness is indicative of the fact that he has also signed the will just like the first witness has signed. Both have described them in their official capacity with reference to their licence number and the first witness in the will PW.2 said that he is the person who prepared the will, and the second witness is the person who has written the will. 50. In A.I.R 1955 SC 363 (Naresh Charon v. Paresli Charon) Venktarama Ayyar, J. speaking for the Bench (consisting of Mahajan, C.J., Bhagwati, Jagannadhadas and Venkatarama Ayyar, JJ.) said 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. 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. The finding of the court below that the will was duly attested is based on a consideration of all the materials, and must be accepted. 51. We should remember the wise words of Sir H. Jenner Fust often quoted in text books on Wills: "Is it absolutely necessary to have positive affirmative testimony by the subscribed witnesses, that the will was actually signed in their presence, or actually acknowledged in their presence; is it absolutely necessary under all circumstances that the witnesses should concur in stating that these facts took place; or is it absolutely necessary, where the witnesses will not swear positively, that the court should pronounce against the validity of the will? I think these are not absolute requisites to the validity of a will; I think the court must take into consideration all the circumstances of the case, and judge from them collectively whether there was not atleast an acknowledgment of a signature, clearly, existing on the face of the will at the time of attestation." Vide Blake v. Knight (1843) 3 Curt 547. Lindley L.J. said: The maxim "omnia praesumuntur rite esse act a is an expression in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect-in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other, but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect". The court will not allow defective memory alone to overturn a will which is upon the face of it duly executed if the witnesses are utterly forgetful of the facts, the presumption omnia rite esse act a will prevail. (Re Webb (1964) 1 WLR 509). 52. In considering the evidence of the attesting witness for the purpose of proving the will, we feel that we have to take into account all the circumstances and we must not be persuaded by the vague statements of the witnesses to hold that the will has not been proved properly. We are of the opinion where the evidence of the attesting witnesses is vague, indefinite, doubtful or even conflicting upon material points, the court is entitled to consider all the circumstances of the case and judge collectively therefrom, whether the requirements of the statute have been complied with, it is possible for the court on an examination of the entire circumstances and evidence to come to a conclusion that the re-collection of the witnesses is at fault or that their evidence is suspicious or that they are wilfully misleading the court and therefore, the court is obliged to pronounce in favour of the will, disregarding the testimony of the witnesses. 53. It has to be remembered that the will has been prepared by a document writer who claims that he has got assistants which would indicate that he is an experienced document writer. So, naturally, he will be knowing the requirement that two attesting witnesses are necessary to make a valid will. P.W.2, the document writer, who prepared the will and Sivarama Pillai, who has written the will have signed the will just below the signatures of the executants stating that they are witness Nos.1 and 2. In these circumstances, it is difficult for this court to accept the statement of PW.2 that the second witness in the will, Sivarama Pillai has signed the will only as a person who wrote it. We think we will be justified in holding that both PW.2 and Sivarama Pillai have signed the will as attesting witnesses. In this context we think it necessary to refer to the verifications filed by PW.2 and Sivarama Pillai along with the application. The verifications are signed by two witnesses and the Advocate. We think we will be justified in holding that both PW.2 and Sivarama Pillai have signed the will as attesting witnesses. In this context we think it necessary to refer to the verifications filed by PW.2 and Sivarama Pillai along with the application. The verifications are signed by two witnesses and the Advocate. In the verifications both PW.2 and Sivarama Pillai have said thus: "one of the witnesses of the last will and testament of Mathai son of Oommen, and his wife, Rahelamma, Ottaplavunilkunnathil, MalakkaraMuri, Aranmula Village, mentioned in the above petition, declare mat I was present and the said testators affixed their signatures therein in my presence. Dated this the 21st day of September, 1989. Sd/ Raman Narayanan Witnesses: - 1. K.T. Thomas Kannath Thekkethil, Alu PO., Chengannur Sd/ 2. M.C. Cherian, Kulakatt Munjart, Perissery, Chengannur Sd/ Sd/- Advocate" "one of the witnesses of the last will and testament of Mathai son of Oommen, and his wife, Rahelamma, Ottaplavunikunnathil, Malakkara Muri, Aranmula Village, mentioned in the above petition, declare that I was present and the said testators affixed their signatures therein in my presence. Dated this the 21st day of September, 1989. sd/-p.k. Sivarama Pillai 54. Counsel for the respondent submitted that the requirement that at least one attesting witness has to be examined for the purpose of proving the will postulates that the witness who is examined for the purpose of proving the will should say that the attesting witness who has not been examined has signed the will in the presence of the executants after seeing the executants signing the will. This proposition of law is seriously disputed by counsel for appellants and the appellants in M.F.A.No. 631 of 1992. In this context, it is relevant to note S.63(c) of the Act, wherein it is only stated that- " 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." 55. From the above quote, it is clear that it is not an imperative condition that both the witnesses shall be present at the same time. If two attesting witnesses have signed at different time, it will not be a cause for saying that the will is invalid. From the above quote, it is clear that it is not an imperative condition that both the witnesses shall be present at the same time. If two attesting witnesses have signed at different time, it will not be a cause for saying that the will is invalid. If two different witnesses signed at different time, it will be difficult for one witness to say that he has seen the other witness signing the will and also the fact that the other witness has signed the will in the presence of the testator or after obtaining an acknowledgment from the testator. If this is the position, it is difficult to insist the only attesting witness examined, to say before court that he has seen the other witnesses signing the will in the presence of the testator. In this case it has to be noted that P.W.2 has said that the second witness also signed the will describing himself as the scribe. In the collocation of events stated by PW.2 it is possible to infer from the statement of PW.2 that Sivarama Pillai the second witness signed after witnessing the signing of the executors and in their presence. 56. Now, we may refer to S.68 of the Evidence Act which only mandates that a document which requires by law to be attested, shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. S.68 of the Evidence Act does not say what the attesting witness called for proving the will should depose before the court in regard to the attestation or witnessing of the other witnesses. Counsel for the respondent referred us to the following decisions to support his contentions: - A.I.R 1955 SC 346 A.I.R 1967 SC 155 A.I.R 1946 Bom.12 A.I.R 1949 Bom. 266 A.I.R 1974 A.P. 13 A.I.R 1981 Mad. 252 and the judgment in S.A. Nos. 1053/63 and 1365/63. 57. In A.I.R 1955 Sc 346 Girija Datt v. Gangotri Datt) the Supreme Court was considering the evidence of the attesting witnesses Uma Dutt Singh and Badri Singh. 266 A.I.R 1974 A.P. 13 A.I.R 1981 Mad. 252 and the judgment in S.A. Nos. 1053/63 and 1365/63. 57. In A.I.R 1955 Sc 346 Girija Datt v. Gangotri Datt) the Supreme Court was considering the evidence of the attesting witnesses Uma Dutt Singh and Badri Singh. The Supreme Court observed that the evidence of Uma Dutt Singh and Badri Singh is not such as to carry conviction in the mind of the court that they saw the deceased sign the will and each of them appended his signature to the will in the presence of the deceased. They have been demonstrated to be witnesses who had no regard for truth and were ready and willing to oblige Gur Charan Lai in transferring the venue of the execution and attestation of the documents Exts. A21 and A36 for reasons best known to themselves. Further, in this case, the court observed after rejecting the evidence of Uma Dutt Singh and Badri Singh that the persons who have signed as identifying witnesses, viz. Mahadeo Pershad and Nageshur, cannot be treated as attesting witnesses without knowing that they had appended their signature at the face of the endorsement of registration ammo attestandi. Further, the court said that if Mahadeo Pershad and Nageshur were considered to be attesting witnesses to depose the fact of such attestation. This decision ( A.I.R 1955 SC 346) we think cannot be pressed into service to say that in proving a will, if one attesting witness alone has been called before the court to depose the execution of the will, he should depose that he has seen the other attesting witness signing the document. 58, Learned counsel for respondent relied on para.4 of the judgment in A.I.R 1967 SC 155 (Gopalakrishna Pillai v. Meenakshi ayal ). The matter relates to will executed by one Chinnayal on September, 1940. It was attested by Balasubramania and Samiyappa alone was examined for proof of the execution and attestation of the will. From the judgment it is seen that Samiyappa was not present when Chinnayal is said to have put her thumb impression on the will. Samiyappahas said that Balasubramania and Muthukumaraswami called hi m and he went inside Chinnayal' s house. Chinnayal acknowledged that she had affixed her thumb impression on the will. Further, he said that he put his signature on the will. Balasubramania completed it after he left. Samiyappahas said that Balasubramania and Muthukumaraswami called hi m and he went inside Chinnayal' s house. Chinnayal acknowledged that she had affixed her thumb impression on the will. Further, he said that he put his signature on the will. Balasubramania completed it after he left. In chief examination, samiyappa said nothing about the attestion of the will by Balasubramania." In cross examination he said that after he signed, Balasubramania wrote certain words on the will and put his signature. He has made it clear in further cross examination that he did not actually see Balasubramania writing or signing the will. The Supreme Court observed thus: "We are satisfied that Samiyappa did not see Balasubramania putting his signature on the will" and added. "The High Court rightly held that the appellants failed to prove the signature of Balasubramania or the attestation of the will by him", and on that ground it was held that the will was not proved. 59. Counsel submitted that this is an authority for the proposition that one of the attesting witnesses who was called for proving the will should say that he saw the other witness attesting the will and if he did not depose the fact, there is no proper proof of, proving the will. From what has been observed by the Supreme Court, we do not think that it is a necessary condition for the sole attesting witness examined for the proof of the will to depose certain things which he has never seen or matters which he does not know. Certainly the ratio of what has been said in para.4 of the decision is that if there is a dispute as to the question whether the attesting witness who has not appeared as a witness has signed or not in the will or the signature appears in the will is not that of the person named in the will, it requires proof because a will requires for its validity two attesting witnesses. In the case at hand, there is no controversy that Sivarama Pillai has not signed the will. It is significant to note that what has been said in A.I.R 1967 SC 155 is that 'the High Court rightly held that the appellants failed to prove the signature of Balasubramania or the attestation of the will by him". 60. In A.I.R 1946 Bom. It is significant to note that what has been said in A.I.R 1967 SC 155 is that 'the High Court rightly held that the appellants failed to prove the signature of Balasubramania or the attestation of the will by him". 60. In A.I.R 1946 Bom. 12 (Roda Framroze v. Kanta Varjavandas) the court was considering the nature of proof that is required to prove a will in the light of S.68 of the Evidence Act. In this case the court said that the Evidence Act lays down the mode of proof, it does not define what is required to be proved under S.63(c) of the Succession Act. If one witness who is called is in a position to state what is required, the law permits that to be done. But, by S.68 of the Evidence Act, the law does not alter what is required to be proved by S.63(c) of the Succession Act. In the same case, the learned judge was quoted an old decision of Calcutta High Court in Rammal Das v. Kakal Koli Kochini (22 C.W.N. 315) where Fletcher J. with Chatterjee, J. agreed said thus: "Under S.68, Evidence Act, it is quite clear that a will can be proved by One of the attesting witnesses. The same view has obtained in England for many years. I quote from a most recent Text Book - Mortimer on Probate Practice, P.302, where the learned author observes: "To prove the attestation of a will in the Court of Probate, it is not necessary to examine both the attesting witnesses." The learned judge was clearly wrong when he rejected the will on the ground that only one of the attesting witness has proved the will." After the above quote, Stone CJ. (in A.I.R 1946 bom.12) observed thus: - "Now it nowhere appears from the facts of that case whether the single attesting witness who has called was able to give evidence as to the attestation of the other attesting witness, that is to say, that both the attesting witnesses were present at the same time. It appears what this may well have been the case, since the learned judge in the Passage I have read, quotes a passage from Mortimer on Probate to the effect that in England one attesting witness can prove a will. It appears what this may well have been the case, since the learned judge in the Passage I have read, quotes a passage from Mortimer on Probate to the effect that in England one attesting witness can prove a will. But there is this material difference between the law of England and the law of India in this respect, viz. that in England it is by the Wills Act obligatory for both the attesting witnesses to be present at the same time in order to witness due execution of the will, whereas in India the testator may acknowledge his signature to the witnesses at different times and not in each other's presence." 61. It is true that before the amendment of S.9 of English Wills Act 1837, by S.17 of the Administration of Justice Act, 1982, the provision was both the attesting witnesses must be present at the same time and both the witnesses attest and subscribe after the testator's signature has been made or acknowledged in their presence. After the amendment S.9(d) of the Wills Act provided that the witnesses do not have to carry out either the attestation and signature or the acknowledgement of their signature in the presence of each other. The provision is S.9(d) . S.9(d) of the Wills Act 1837 as amended reads thus: - "Signing and attesting of wills No will shall be valid unless - (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either - (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness) but no form of attestation shall be necessary." 62. In the commentary in Halsbury's Statute Vol.50 it is stated that the general practice is for witnesses to subscribe in each other's presence (and was recommended, although not for incorporation in statutory fashion by the Law Reform Committee.) 63. In the commentary in Halsbury's Statute Vol.50 it is stated that the general practice is for witnesses to subscribe in each other's presence (and was recommended, although not for incorporation in statutory fashion by the Law Reform Committee.) 63. We are of opinion that the fact that before the amendment of Wills Act, the English Law was that both the attesting witnesses must be present at the same time and that provision would support the proposition that the attesting witness called before court need not depose before the court that the other attesting witnesses attested the will, is not a sound reason. On the contrary, we are of the view that when there is a provision that both the attesting witnesses must be present at the same time would be a good ground to insist that when one attesting witness alone is called to prove the will that witness should also depose that he has seen the other attesting witness attesting the will. 64. A.I.R 1946 Bom.12 has referred to the decision of Fletcher, J. in A.I.R 1918 Cal. 78 (Remmal v. Kakal Koli) and explained the decision stating that Fletcher has quoted a passage from Mortimer on Probate Law and Practice. The quote has not been reproduced in the judgment in A.I.R 1946 Bom.12. That quote only reads thus: "To prove the attestation of a will in the Court of Probate, it is not necessary to examine both the attesting witnesses." The Indian Law also provides a similar provision in case when the propounder is not in a position to prove the will by examining both the witnesses. 65. In A.I.R 1974 A.P. 3(K. Nookarajuv. P. Venkatarao) a learned single judge of A.P. High Court held that it is clear from S.68 of the Evidence Act read with S.63(c) of the Indian Succession Act, that it is sufficient even if one attestor is examined but that attestor should speak not only about the testator's signature or affixing his mark to the will or somebody else signing it in his presence and by his direction or that he had attested the will after taking acknowledgment from the testator of the signature or mark, but he must also speak that each of the witnesses had signed the will in the presence of the testator". 66. 66. In this case the learned judge has refered to A.I.R 1955 SC 346, A.I.R 1967 SC 155 and A.I.R 1946 Bombay 12. We have already referred to A.I.R 1955 SC 346, A.I.R 1967 SC 155 and A.I.R 1946 Bombay 12. 67. In A.I.R 1981 Madras 252 the Madras High Court referring to A.I.R 1955 SC 369 observed thus: - "The learned counsel for the appellants relied on the decision of the Supreme Court in Nareshcharan v. Paresh Charan, A.I.R 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 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. I 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 mat the witnesses did not specifically state that they attested 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 probabilise the signing or attestation by the witnesses in the presence of the testator". 68. In A.I.R 1981 Mad. 252 (Pattammal v. Kanniammal) the question did not arise. In this case, it appears that both the attesting witnesses have been examined. What is stated in paragraph six of the judgment is that the execution as such may be taken as proved within the meaning of the S.68 of the Indian Evidence Act. 68. In A.I.R 1981 Mad. 252 (Pattammal v. Kanniammal) the question did not arise. In this case, it appears that both the attesting witnesses have been examined. What is stated in paragraph six of the judgment is that the execution as such may be taken as proved within the meaning of the S.68 of the Indian Evidence Act. At least P.W.3 had stated that the testator had signed the document in his presence; but neither the evidence of PW.1 nor that of P.W.3 is enough to show that each Of the witness is signed in the presence of the testator. Further, the court said that P.W.3's evidence gives an impression that P.W.3 and the testator alone were present and later P.W.1 attested. In the circumstances, the court said that it is not possible to accept the contention that the evidence would probabilise the signing or the attestation of the witnesses in the presence of the testator. 69. Counsel also referred to a decision of a single Bench of this court in S. A. Nos. 1053 of 1963, 1136 of 1965 and 9,10 and 160 of 1966. Referring to A.I.R 1955 SC 346 and A.I.R 1949 Bom. 266, the learned single judge observed that "a will can be taken to have been properly proved only if it is established that two attesting witnesses had signed the will in the presence of the testator and the testator has seen the witnesses sign the will. In this case, the evidence of D.W.6 is insufficient to prove that the other witnesses had signed the will in the presence of the testator. It has therefore to be taken that there is no proof that the will has been duly executed". Except referring to the two decisions, there is no discussion by the learned single judge. 70. In A.I.R 1949 Bom. 266 (Vishnu Ramkrishna v. Nathu Vithal) considering the requirements under S.68 of the Evidence Act, a Division Bench of the Bombay High Court observed that although the Indian Succession Act requires that a will has to be attested by two witnesses S.68 of the Evidence Act permits the execution of the will to be proved by only one attesting witness being called. But it is important to note that at least one witness should be in a position to prove the execution of the will. But it is important to note that at least one witness should be in a position to prove the execution of the will. If that attesting witness can prove the execution of the will, the law dispenses with the evidence of the other attesting witness. But if that one attesting witness cannot prove the execution of the will, then his evidence has to be supplemented by the other attesting witness being called to prove the execution. After stating thus the court observed "that in this case the one attesting witness who has been called, and he is the only attesting witness, Dr. Pillay, does not prove the execution of the will. The execution of the will does not merely mean the signing of it by the testatrix or putting her thumb impression on the document, but it means all the formalities required and laid down by S.63 of Succession Act, and, as we have already pointed out, Dr. Pillay is not in a position to prove the attestation of the will by the second witness, and, therefore, the evidence of Dr. Pillay falls short of the mandatory requirements of S.68 Evidence Act." 71. The above quote would certainly indicate that if the propounder is not in a position to examine both the attesting witnesses and that if he is producing only one attesting witness, to comply with the provisions of S.68, it is incumbent for the propounder to elicit from the attesting witness called before the court, an additional fact that he has seen the second or the other witness attesting the document. We feel that there is an incongruity in this approach, in so far as there is no mandatory provision that each of the attesting witnesses must see the other witnesses attesting the document. The decision reported in A.I.R 1949 Bom. 266 was distinguished in A.I.R 1966 A11.570 (Krishna Kumar v. Kayastha Pathahala). The Division Bench of the Allahabad High Court observed that it is however not necessary that the fact that other witness also has attested the document should be proved by the attesting witness examined because under S.63(c) of the Succession Act, it is not necessary that more than one witness be present at the same time and if therefore the fact is proved by any other evidence, the requirement of law is fully satisfied. 72. 72. We may refer to some old decisions of Allahabad High Court, 39 All. 109 (Ram Dei v. Munna Lai); 39 All 241 (Shib Dayal v. Sheo Ghulem) and 54 All. 1051, A.I.R 1932 All 527 (Lachman Singh v. Surendra Bahadur Singh). The ratio of the first two cases, in our view is that it is possible to prove due execution of a mortgage by calling one attesting witness, even in a case where that witness is not giving evidence of the attestation of the other witnesses. 73. In A.I.R 1932 All 527 a Full Bench of the Allahabad High Court held that where a mortgagee sues to enforce his mortgage and the execution and attestation of the deed are not admitted, the mortgagee need prove only this much that the mortgagor signed the document in the presence of an attesting witness and one man attested the document, provided the document on the face of it bears the attestation of more than one person; but if the validity of the mortgage be specifically denied, in the sense that the document did not effect a mortgage in law, then it must be proved by the mortgagee that the mortgage deed was attested by at least two witnesses. 74. In A.I.R 1972 Gau. 44 (Dhiran Bailung v. bhutuki) This case (A.I.R 1932 All 527) has been followed. The Gauhati High Court observed thus: - "All that S.68 demands before a document requiring attestation can be used, as evidence is that one attesting witness atleast should be called for the purpose of proving its execution". In this decision it has been stated that one attesting witness was called in and he testified that Shashi and Paniram had executed the mortgage deed Ext.1 in his presence by placing their signatures on it and that he had attested the document. Therefore, the requirements of S.68 were evidently satisfied. 75. Considering the proof of mortgage with reference to S.68 of the Evidence Act, in A.I.R 1939 P.C.117 (Surendra Bahadur v. Behari Singh) it was found that there was a denial of the execution and attestation of the mortgage and so it was necessary to prove it by satisfying the requirements under S.68 of the Evidence Act. 75. Considering the proof of mortgage with reference to S.68 of the Evidence Act, in A.I.R 1939 P.C.117 (Surendra Bahadur v. Behari Singh) it was found that there was a denial of the execution and attestation of the mortgage and so it was necessary to prove it by satisfying the requirements under S.68 of the Evidence Act. Their Lordships dismissed the contention that the proof by examining the attesting witness is unnecessary and proceeded to consider whether one attesting witness' evidence is sufficient and in that context, observed thus: - "Then it was urged that at least one attesting witness, viz. Badri Prasad, was called at the trial and therefore the provisions of S.68, Evidence Act were complied with, and no further evidence of the due execution and attestation of the mortgage deed was necessary. This further contention cannot be accepted by their Lordships, for although Badri Prasad purported to have been an attesting witness, and although he was called at the trial for the purpose of proving the execution of the mortgage deed, his evidence has not been accepted as evidence upon which any reliance could be placed". It is significant to note that the argument was rejected only on account of a fact that Badri Prasad was found to be an unreliable witness. We are of the opinion that the two Supreme Court decisions referred to, A.I.R 1955 SC 346 and A.I.R 1967 SC 155 would not support the proposition that for the purpose of satisfying the requirements under S.68 of the Evidence Act, the only attesting witness called before the court should speak as to the attestation by the uncalled witness also. We say so, since the witness called before the court may be in a position to speak the fact of attestation by the other witnesses. For valid attestation, unlike the English Law, as ii stood before the amendment of English Wills Act, 1837 Indian law does not insist that the two attesting witnesses also should be present at the same time when the will is executed, it is possible for executing a will with proper attestation by the attesting witnesses signing at different times and without knowing each other. Since the requirement of S.63 Succession Act is only that there should be two attesting witnesses in the will and that there is no insistence that the attesting witnesses also should be present at the same time, we find it difficult to extend the provision of S.68 of the Evidence Act so as to make it obligatory even when only one attesting witness is called and the propounder is not in a position to call the other witness, to elicit a fact which the attesting witness called may not be in a position to speak honestly before the court. We feel that such an insistence would only be an addition of an unnecessary technicality and that it may lead to witness called for proving, execution and attestation of wills deposing falsehood before the court. In this view we find it difficult to follow the decisions reported in IR 1946 Bombay 12 A.I.R 1949 Bombay 266, A.I.R 1974 AP.13, A.I.R 1981 Mad. 252 and the observations in S.A.1053/63 and 1336 of 1965 and 9,10 and 160 of 1966. 76. in (1956) 11 K.L.R.283 (Anthony Thommen v. Thommen Alexander& Anr.) a learned single judge of this court, considering the requirement under S.68 of the Evidence Act, observed that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution if one is available. Thus what the law makes imperative is only the examination of one attesting witness, which has been complied with in the case. The learned single judge's observation "what the law makes imperative is only the examination of one attesting witness" is significant. We think that it is not justifiable to insist that the imperative that one witness has to be examined, should further be made rigorous by insisting that one witness called before the court should speak something which he has not seen or something which he cannot testify. 77. We hold that the two witnesses in the will are attesting witnesses and one of the attesting witnesses was not in a position to be examined in court. One of the two attesting witnesses has been examined. 77. We hold that the two witnesses in the will are attesting witnesses and one of the attesting witnesses was not in a position to be examined in court. One of the two attesting witnesses has been examined. Additional evidence to prove attestation is supplied by both the attesting witnesses subscribing to the verifications filed along with the application wherein they have stated that they have attested the will and the further fact that the will has been registered. The evidence of P.W.3 the identifying witness in Ext. Al Will is also significant in this context. It is also to be noted that we are considering a will, which is attacked only by one of the children who also admitted that the will in question is that of the testator and testatrix. He challenged the will mainly on the ground that the disposition in the will is in respect of properties over which the testator and testatrix had no title and ownership at the time of executing the will. We hold that the will Ext. Al is a genuine will and it has been executed complying with the formalities required under S.63(c) of the Succession Act, and proved properly satisfying the requirements under S.68 of the Evidence Act. There are no suspicious circumstances surrounding the will. Hence the application has to be allowed. We set aside the impugned judgment. The lower court is directed to issue letters of administration in regard to the properties scheduled in the application after imposing the necessary fees for issuing letters of administration. We make it clear that we have not considered the question of tide of the testator and testatrix in regard to the properties scheduled in the Will and also that we have not said anything about the validity of the cancellation deed Ext. A2.