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2004 DIGILAW 314 (HP)

DALIP SINGH v. DEVI DASS

2004-11-29

K.C.SOOD

body2004
JUDGMENT K.C. Sood, J.—Heard. Admit on the following substantial questions of law: Whether a Sub Registrar who attested a will can substitute for the attesting Witness of the will as contemplated under Section 63 (c) of the Indian Succession Act. 2. With the consent of the parties, the appeal is heard on merits. 3. The defendants/appellants having lost before the trial Court and the First Appellate Court are in this second appeal under Section 100 of the Code of Civil Procedure. 4. The only question raised in this appeal is the validity of the will alleged to have been executed by Dromati Devi in favour of the defendants. The plaintiffs filed a suit before the learned trial Court saying that the property, subject matter of dispute, was owned and possessed by Dromti Devi, the mother of the plaintiff and defendants to the extent of 3/16th shares. The property was inherited by the plaintiff and the defendants. The defendants, in order to grab the property, have set up a forged and fictitious will allegedly executed by Daromti Devi. The will set up by the defendants is liable to be declared null and void being a forged document and surrounded with suspicious circumstances. 5. The case of the defendants as set up in the written statement was that will had validly been executed in favour of the defendants which is a genuine document. Both the learned trial Court and First Appellate Court found that the will is not proved to be validly executed. 6. It is admitted position before me that one of the attesting witnesses had expired and the other attesting witness though alive, was not examined by the defendants. Mr. Palsara, learned Counsel for the appellants would contend that Sub Registrar who registered the will was examined as DW4 who had stated that the will was read over and explained to Daromti Devi and Daromti Devi affixed his thumb impression in his presence after admitting the contents to be correct and therefore, for all purposes, the Sub Registrar would be an attesting witness to the will. 7. Section 63 of the Indian Succession Act provides for the execution and attestation of the will. Section 63 reads : "63. 7. Section 63 of the Indian Succession Act provides for the execution and attestation of the will. Section 63 reads : "63. Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or a mariner at seas, shall execute his will according to the following rules: (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signatures of such other persons, and each 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". 8. It may be noticed that according to Section 63 of the Act three things are necessary for valid execution of the will :— (1) It must be in writing; (2) It must be duly signed by the testator; and (3) It must be duly attested by at least two witnesses. 9. Due execution of the will has to be proved within the parameters of Section 63 and the law requires strict compliance of this provision. 10. Section 63 (c) of the Indian Succession Act though does not provide for a particular form of attestation but nevertheless, it is necessary, as required by Section 68 of the Indian Evidence Act that at least one of the attesting witnesses should be examined to prove the due execution of the will. It is the duty of the prepounder of the will to prove from the witness(es) that each of the witness saw the testator signing the will, and each one of them signed the will in the presence of the testator. It is the duty of the prepounder of the will to prove from the witness(es) that each of the witness saw the testator signing the will, and each one of them signed the will in the presence of the testator. For a valid attestation of the will, the following conditions must be specified : (a) The will must be attested by at least two witnesses; (b) Each of these (i) must either see the testator sign or affix his mark to the will or must see some other person sign the will in the presence and by the direction of the testator, or (ii) must receive from the testator a personal acknowledgement of his signature or mark or of the signature of such other person; (iii) Each of these must sign the will; (iv) They must sign in the presence of the testator. 11. If any of these four conditions is not satisfied, the attestation is bad and the will invalid. 12. As noticed earlier, Section 68 of the Evidence Act clearly provides as to how a document, required by law to be attested, can be proved. Section 63 of the Evidence Act spells out that a document required 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 if there be an attesting witness alive. In other words, if there is an attesting witness alive capable of giving evidence, then he has necessarily to be examined before the will can be used in evidence. A reading of Section 63 of the Act read with Section 68 of the Evidence Act makes it clear that a person propondering the will has to prove that the will was validly executed and this cannot be done by simply proving that the signatures on the will were that of the testator. The preponder must prove that the will was properly attested as required by clause (c) of Section 63 of the Succession Act. A Registering Authority indeed cannot substitute for the attesting witness. 13. Mr. Palsara relying upon Bhagat Ram and another v. Suresh and others, 2004 (1) S.L.C. 426, submits that the Sub Registrar who registered the will can be treated as the attesting witness of the will. The contention is fallacious. 14. A Registering Authority indeed cannot substitute for the attesting witness. 13. Mr. Palsara relying upon Bhagat Ram and another v. Suresh and others, 2004 (1) S.L.C. 426, submits that the Sub Registrar who registered the will can be treated as the attesting witness of the will. The contention is fallacious. 14. In Bhagat Ram, the will was presented for registration at the residence of the Executant. The Registrar of Deeds explained the contents of the will to the executant who admitted the execution of the will but made an oral statement to the Registrar which was in departure from the contents of the will. The Registrar recorded the statement made by the executant. This statement was signed by the executant and attested by one witness. The Registrar also put his signatures below the endorsement which incorporated the statement made by the executant. It is in this background that the Apex Court observed the Registrar can be treated to have attested the codicil/will if his signature or mark appears on the document akin to the one placed by an attesting witness and he has seen the testator and other attesting witness sign or affix his mark to the Will or codicil or has received from the testator and the other attesting witnesss a personal acknowledgement of his signature or mark and he has also signed in the presence of the testator. In para 21 of the judgment, Their Lordships categorically observed that Registrar of Deeds who registered a document in discharge of his statutory duty does not become an attesting witness to the deed solely because he discharged his statutory duty relating to the registration of the document. Their Lordships obsewed : ......"Registration of Will, and t- x endorsements made by the Registrar of Deeds in discharge of his statutory duties do not elevate him too the status of a statutory attesting witness". 15. In the present case, the signatures of the Registrar does not appear as having attested the will in question along with the other attesting witnesses nor does he say that the testator signed or affix his mark to the will in his presence. 16. This apart the Sub Registrar, examined as defence witness, does not say that the second attesting witness attested the will in his presence. 16. This apart the Sub Registrar, examined as defence witness, does not say that the second attesting witness attested the will in his presence. It is the requirement of Section 63 (c) of the Act that the attesting witness who is called to prove the execution has to prove the attestation of the will by the second witness. Indisputably, the second witness did not sign the will in his presence. For this reason too the will is not proved to be executed in accordance with law (See: Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 Supreme Court 761). 17. In the facts and circumstances of this case, the Sub Registrar who registered the will, after ascertaining from the Executant that he executed the will, cannot substitute for the attesting witness. 18. To conclude, in the absence of examination of any of the attesting witnesses, though one of the attesting witnesses was admittedly alive, who could have been examined, the will is not proved to have validly been executed. 19. The question is answered accordingly. 20. There is no merit in the appeal. Dismissed. 21. No costs. CMP No. 764 of 2004. In view of the dismissal of the main appeal, this application does not survive. Interim order dated 26.8.2004 shall stand vacated. The application is disposed of. Appeal dismissed.