ORAL .JUDGMENT 1. This is the plaintiffs' Second Appeal filed under Section 100 of the Code of Civil Procedure. It arises out of judgment and decree dated 28.2.89 passed by the District Judge, Durg, in Civil Appeal No. 1-A/88 arising out of judgment and decree dated 28/9/87 passed in Civil Suit No.9-N86 by the Fourth Civil Judge, Class-II, Durg. The trial Court decreed the entire claim of the plaintiffs. However, in the appeal, the aforesaid decree passed by the trial Court was reversed and the appeal to the extent indicated in para 20 of the impugned judgment was allowed. 2. This appeal was admitted for hearing on 07.03.1990 on the following substantial questions of law ;_ (i) Whether the lower appellate Court was right in holding that the will executed by Kejabai in favour of respondent No.1 Bahadur has been proved to be valid? (ii) Whether the plea of adverse possession raised by the respondents has been proved according to law? 3. The brief facts are that the suit lands, which are the agricultural lands and are situated in 2 villages - Nawagarh and Parsada, were the properties belonging to one Biharilal. Biharilal died in the year 1950. He was having two wives. Kejabai was the daughter of Biharilal, who was from the side of the first wife and Sonarin Bai was his second wife, having two daughters namely Hemwati Bai and Jagati Bai, who are the plaintiffs in the suit. After the death of Biharilal in the year 1950, his properties were recorded in the name of Sonarin Bai. When certain disputes were raised in a village panchayat dated 21/3/1951, the entire properties of Biharilal were divided into 4 shares. One share was given to Hemwati Bai, another share was given to Jagati Bai, third share was given to Kejabai and the fourth share was retained by Sonarin Bai herself. Sonarin Bai died in the year 1966. It is stated that after the death of Sonarin Bai, her share was again divided into three parts and Kejabai, her step daughter, Hemwati Bai and Jagati Bai, her real daughters again received 1/3 share each. Kejabai remained in possession of the property allotted to her in the Panchayat partition of the year 1951 and also received by her on the death of Sonarin Bai in the year 1966. Kejabai died issueless in the year 1969. Kejabai remained in possession of the property allotted to her in the Panchayat partition of the year 1951 and also received by her on the death of Sonarin Bai in the year 1966. Kejabai died issueless in the year 1969. The original defendant No. 1 - Narayan was the husband of Kejabai and defendant No.2 namely Bahadur, the present respondent No. 1, was the nephew of Narayan. It is stated that Kejabai has executed an unregistered Will deed dated 16.10.69 in favour of Bahadur -defendant No.2 and has bequeathed the properties contained in the Will in his favour. The dispute arose after the death of Kejabai in the year 1969, when the properties were claimed by the plaintiffs. Narayan and Bahadur filed their joint written statement denying the claim of the plaintiffs. It was pleaded by them that the properties owned by Kejabai and contained in the Will were bequeathed to Bahadur on 16/10/1969 by Ex. D-1. They also pleaded that since both of them are in actual physical possession of the entire property received by Kejabai in the above partition since the life time of Kejabai, they have perfected their title by way of adverse possession. 4. One important incident took place during the pendency of the suit, when the original defendant No. 1 - Narayan, husband of Kejabai died sometimes in the year 1986. 5. The trial Court decreed the suit of the plaintiffs holding that the defendant could not prove that any such Will was executed in favour of Bahadur vide Ex. D-1. It also recorded a finding that since the properties belonging to Kejabai were the properties acquired by her father - Biharilal, therefore, after the death of Kejabai and also after the death of Narayan, according to the provisions of Section 15 of the Hindu Succession Act, 1956, these properties shall be devolved in the heirs of the father and in this manner also, the plaintiffs, who are admittedly the heirs of the father will get the properties. 6. Against the aforesaid judgment and decree passed by the trial Court, defendant Narayan, the only survived defendant, filed an appeal before the Lower Appellate Court. 6. Against the aforesaid judgment and decree passed by the trial Court, defendant Narayan, the only survived defendant, filed an appeal before the Lower Appellate Court. The Lower Appellate Court allowed his appeal and set aside the judgment and decree passed by the trial Court holding that Bahadur became the absolute owner of the property by virtue of Will deed and in fact, he was in actual physical possession of the property, though alongwith Narayan since the lifetime of Kejabai, therefore, Bahadur and Narayan, both had perfected their title by way of adverse possession. It is against this judgment passed by the First Appellate Court, the defendants have filed this Second Appeal under Section 100 of the Code of Civil Procedure. 7. So far as the first question of law is concerned, it has been held by the Apex Court in the matter of H. Venkataehala Iyengar Vs. B.N. Thimmajamma and others that 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. Sections 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 Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 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. 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. 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. It has been further held by the Apex Court that the propounder would be called upon 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, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will." 8. Following the above decision, the Apex Court further held in the matter of 8m!. Jaswant Kaur Vs. Smt. Amrit Kaur and others, that in cases where the execution of a will is surrounded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will. 9. In the matter of Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, the Apex Court held that on a combined reading of section 63 of the Succession Act with section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. 9. In the matter of Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, the Apex Court held that on a combined reading of section 63 of the Succession Act with section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. The Apex Court further held that it is true that section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the will as envisaged in section 63. 10. Therefore, on the above principles, it is apparent that if the attesting witnesses, atleast one of them are alive and are capable of giving evidence before the court, they are required to be brought before the Court and a valid execution has to be proved in accordance with the above provisions of law. However, section 71 of the Evidence Act is in the nature of safeguard to the mandatory provision of section 68 to meet the situation where it is not possible to prove the execution of the will by calling attesting witnesses though alive. No doubt, if the attesting witnesses are not alive these provisions may not be availed by a party, but the law permits that in such situation a valid execution can be proved by other evidence may be the evidence of the scribe, but a settled position of law is that the scribe of a will cannot be treated as an attesting witness particularly when he has not signed the will as "Animo Attesestendi'. 11. In the present case, it appears that two of the attesting witnesses of the will have been examined. Jhumuklal (PW-2) has been examined from the plaintiffs side and Amar Singh (DW-6) has been examined from the defendant's side. Jhumuklal stated vide para 7 that it is true that he cannot say as to where this Will (Ex. D-1) was scribed. He has further stated that he cannot say as to who got this Will scribed. Jhumuklal (PW-2) has been examined from the plaintiffs side and Amar Singh (DW-6) has been examined from the defendant's side. Jhumuklal stated vide para 7 that it is true that he cannot say as to where this Will (Ex. D-1) was scribed. He has further stated that he cannot say as to who got this Will scribed. He further says that when he reached to the house of Bahadur, the persons gathered there said him to sign the document and then only, he made his signature over the said document. Except this, nothing has been said by this witness about the execution of the Will produced by the defendants, though this witness has been examined from the plaintiffs' side. 12. The other attesting witness namely Amar Singh (DW -6) said in his examination-in-chief that a Will was executed by Kejabai and he was present at the time of execution. He has identified that this document (Ex.D-1), bears his signature at portion - B to B. In his cross-examination, vide para 2 this witness has stated that he does not know where this document was written. Though he has said that Kejabai had put her thumb impression on this document, but he was unable to say as at how many places, she marked her thumb impression. He has specifically stated that he does not know as to how many days prior to the said date, the document was written and he has stated that he had not read the document as to what are the contents thereof. Lastly, he has stated in the cross-examination that this document was written in village - Nawagaon. However, he stated that there is no typing institute/ shop in the said village. It is pertinent to note that this document - EX.D-1 is a typed document and the script thereof is written in Hindi. It is also pertinent to note that the scriber of the Will namely Vishnu Prasad, Document Writer, who is the resident of Durg, was not examined before the trial Court by the defendant and the Will in question has been pressed into motion on the strength of examination of these two witnesses only. 13. Apart form this, the evidence/statement of the defendant himself is also important in this regard. The defendant has said vide his cross-examination that Narayan, the husband of Kejabai happens to be his Uncle (Phufa). 13. Apart form this, the evidence/statement of the defendant himself is also important in this regard. The defendant has said vide his cross-examination that Narayan, the husband of Kejabai happens to be his Uncle (Phufa). He has categorically stated that the Will in question was written on the instructions of Narayan and he has also accompanied Narayan to Durg for getting this Will written, because, the executant of the Will namely Kejabai was unable to walk and she was bed-ridden since 15 days prior to the said date. He has also stated that she was ill since 3-4 months prior to these incidents. He has further stated that the stamp paper, on which, the Will was written was not purchased by Kejabai and when the question was asked as to how her thumb impression is there at the place of purchaser of the stamp paper, he could not explain and said that he cannot say as to how the thump impression at place B to B and other places are coming in the said document. 14. In the opinion of this Court, on the principles laid down by the Apex Court in various judgments (Supra), the unregistered ill deed dated 16/1 0/1999 is not proved in accordance with law by the defendant and the Lower Appellate Court has recorded a perverse finding that the will was established by them. This question of law is answered in form that the will (Ex.D-1) executed by Kejabai in favour of respondent No. 1 - Bahadur has not been proved to be valid. 15. So far as the question of perfection of title by way of adverse possession is concerned, it has not been established by the defendants in this case. It has not been proved by them that the present defendant remained in actual physical possession of the suit property to the execution of the title of the plaintiffs so as to give a right in his favour to raise a plea of perfection of title by way of adverse possession. 16. The question of adverse possession is a question of fact, which has to be determined in each case after applying a correct test to the plea retained by a party. The denial of title and the animus to hold adversely should, however, be clear and evidenced by unequivocal conduct. The plea of adverse possession is always raised against the true owner. The denial of title and the animus to hold adversely should, however, be clear and evidenced by unequivocal conduct. The plea of adverse possession is always raised against the true owner. 17. In the present case, admittedly, Kejabai was the true owner of the property, who continued to be in possession till her death in the year 1969 and according to the provisions of the Hindu Succession Act, in absence of testamentary disposition, her husband namely Narayan will become the absolute owner of the same, who was joined as defendant No. 1 in this case. It comes in the evidence of defendant himself that he came in possession of the property along with Narayan and he continued to be in possession along with him till his lifetime. He has stated vide para 6 of his statement that he was cultivating the lands on the directions/permission of Narayan. This goes to show that his possession was never asserted to be adverse either to the ownership of Kejabai or to the ownership of Narayan in the lifetime of Narayan. 18. Even otherwise also, when the defendant-Bahadur is claiming his title on the strength of the will, which in normal case becomes operative after the year 1969 i.e. after the death of the testator and he continues to be in possession even after the year 1969 along with the husband of the testator, in absence of Will being proved, his possession cannot be adverse on the face of his own admission which shows that he was throughout in continuous possession along with Narayan and his possession was never asserted to be adverse against the interest of Narayan. 19. The First Appellate Court completely lost sight of the well established principles of adverse possession and reached to a wrong conclusion and has recorded a perverse finding that even otherwise also the defendant,- Bahadur has perfected his title by adverse possession. In the opinion of this Court, such finding is not correct and the answer to question No.2 is that the plea of adverse possession raised by the respondent has not been proved in accordance with law. 20. In the result, the appeal is allowed. The judgment and decree passed by the First Appellate Court are set aside and the judgment and decree passed by the Trial Court are restored. There shall be no order as to cost. Appeal Allowed.