Judgment Hon'ble SINGH, J.—This appeal under Section 384 of the Indian Succession Act, 1925 has been filed against the judgment dated 03.06.1994 passed by the learned District Judge, Alwar in Civil Misc. Application No.186/1982 allowing the application filed by the respondent under Section 372 of the Indian Succession Act, 1925 for the grant of succession certificate in respect of the property left behind by the deceased Bhagwan Sahai. The facts, in brief, are that the appellant and the respondent belong to the same family. With a view to understand their relationship, the following pedigree may be perused:- Bhagwan Sahai(Died issueless) Birdhi Chand Shiv Narain| Chand Behari| Rokad Chand(Appellant) Beni Prasad Wife Rajeshwari (Respondent) 3. The property was that of the deceased Bhagwan Sahai who died on 15.11.1982. Bhagwan Sahai never married and he left behind a registered Will dated 11.11.1982 by which he bequeathed his entire property both movable and immovable, as mentioned in the said Will executed on 11.11.1982, in favour of the respondent Rajeshwari Devi wife of Shri Chand Behari @ Ram Behari. 4. The deceased had a post office savings account with an amount of Rs.6,000/- which was a time deposit account and the dispute centers around the money lying in the said account. The respondent Rajeshwari Devi filed an application for the grant of succession certificate under Section 372 of the Indian Succession Act, 1925 in respect of the aforesaid amount of Rs.6,000/- claiming the same on the basis of the registered Will dated 11.11.1982, executed by the deceased Bhagwan Sahai in her favour. 5. The respondent contested the said application interalia denying the execution of the Will and that the amount lying in the post office savings account was in the joint account of the deceased as well as the appellant Rokad Chand wherein it was provided that the amount may be withdrawn by either of them or survivor. On the basis of the above, it was contended that the appellant alone was entitled to recover the said amount. It may also be stated here that the execution of the Will was denied and it was stated that the deceased had in fact executed a Will in favour of the appellant Rokad Chand in the year 1973 wherein the property was left by the deceased in favour of the appellant Rokad Chand. 6. It may also be stated here that the execution of the Will was denied and it was stated that the deceased had in fact executed a Will in favour of the appellant Rokad Chand in the year 1973 wherein the property was left by the deceased in favour of the appellant Rokad Chand. 6. The learned District Judge framed four issues which are reproduced as under:- ^^1- D;k e`rd Hkxokulgk; us fn- 11-11-82 dks izkFkhZ;k Jherh jkts'ojh nsoh ds i{k esa olh;r lEikfnr djk iathc) djk;h\ 2- D;k e`rd Hkxokulgk; }kjk izrkix<+ iksLV vkWfQl esa 6000@& :- dh jkf'k tek djkbZ\ 3- D;k mä olh;r ukek ds vk/kkj ij izkFkhZ;k e`rd Hkxokulgk; }kjk izrkix<+ iksLV vkWfQl esa tek djk;s 6000@& :i;s dh jkf'k ds fy, mÙkjkf/kdkj izek.k i= ikus dh vf/kdkjh gS\ 4- D;k e`rd Hkxokulgk; us vizkFkhZ jksdM+pan ds i{k esa fnukad 11-10-73 dks olh;rukek lEikfnr fd;k FkkA ;fn gkW rks mldk D;k izHkko gS\ 5- lgk;rk\** 7. The learned District Judge decided all the issues in favour of the respondent Smt.Rajeshwari Devi who was the applicant and ordered that the succession certificate under Section 372 of the Indian Succession Act, 1925 may be issued and held that she is the lawful successor of the deceased and she is entitled to the amount lying in the savings account No.156721 in the post office at Pratapgarh, District Alwar. It was also held under Issue No.4 that the execution of the Will dated 11.10.1973 in favour of the appellant is not proved. 8. Learned counsel appearing for the appellant has in the first instance submitted that the Will is not a genuine one as it is surrounded by suspicious circumstances. At the same time, it has been submitted that the learned District Judge has erred in holding that the Will has been proved while the same was not proved by producing any of the attesting witnesses, as required by Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. 9. It was further submitted that the learned District Judge has committed an error in giving a declaration that the respondent Rajeshwari Devi based upon the Will is successor of the deceased while the application was one for the grant of succession certificate under Section 372 of the Indian Succession Act only in respect of the amount lying in the Post Office savings account. It has further been contended that as per the provisions of the Post Office Time Deposit Rules, 1981 under Rule 4, on the death of the depositor, the surviving depositor shall be treated as the sole owner of the account and consequently the appellant being the joint account holder was entitled to receive the same exclusively irrespective of the alleged Will dated 11.11.1982. 10. Learned counsel for the respondent, on th other hand, submitted that the Will dated 11.11.1982 has been held to be proved by the learned District Judge and the learned District Judge has come to the conclusion that the suspicious circumstances, as have been pointed out by the appellant, do not amount to such a suspicion to the extent that the Will may be considered to be a fabricated one. Learned counsel further submitted that so far as the proving the Will by producing the attesting witness is concerned, the applicant-respondent had produced AW-4 Pooranmal who is not only the scribe and the person who typed the Will but has put his signatures on the Will (Exhibit-1) at E to F after the same was marked by the deceased in his presence. He, therefore, contended that in view of the definition of “attestation” as provided under Section 3 of the Transfer of Property Act, 1882 which only requires that the witness should have seen the executant putting his mark or signing the same in his presence. He referred to the statement of AW-4 Pooranmal wherein he has stated that he had typed the document (Will) Exhibit-1 which was read over by him to the deceased Bhagwan Sahai who having accepted the same to be correct put his mark (thumb impression) in acknowledgment and in execution of the said Will. He referred to the statement of AW-4 Pooranmal wherein he has stated that he had typed the document (Will) Exhibit-1 which was read over by him to the deceased Bhagwan Sahai who having accepted the same to be correct put his mark (thumb impression) in acknowledgment and in execution of the said Will. He further deposed that after Bhagwan Sahai put his thumb impression, he has put his signatures below his thumb impression at E to F. In view of the above, it was contended that Pooranmal who happens to be the typist who typed the Will at the instance of the deceased and saw the deceased put his mark and then himself signed it below the mark of the executant, in the facts and circumstances of the present case, would also come within the scope of attesting witnesses of the Will and, therefore, the compliance of the Section 68 of the Indian Evidence Act, 1872 read with Section 63 of the Indian Succession Act, 1882 has been fulfilled. Learned counsel further drew the attention of the court to the fact that the learned District Judge in his judgment while deciding the issue No.4 with regard to the Will set up by the appellant alleged to have been executed by the deceased on 11.10.1973 (Exhibit-A/1) has held that Will to be forged and a fabricated piece of evidence as it contains a recital about the post office savings account of the deceased which was not in existance in 1973 as the same was opened in 1982 and, therefore, a person who has himself not come with clean hands cannot be permitted to raise the objections before this court. 11. Learned counsel for the respondent further supported the judgment of the learned District Judge in so far as the learned District Judge has held that the circumstances which were pointed out by the appellant of the Will to be suspicious were rightly negatived by the learned District Judge. 11. Learned counsel for the respondent further supported the judgment of the learned District Judge in so far as the learned District Judge has held that the circumstances which were pointed out by the appellant of the Will to be suspicious were rightly negatived by the learned District Judge. He further contended that the Will was after execution presented for the registration by the deceased himself and was registered by the Sub-Registrar who had verified the fact of execution of the Will by putting this to the deceased executant and the same having been executed in favour of the applicant Smt.Rajeshwari Devi by the deceased by reading over the contents of the Will to the deceased executant who admitted the same to be correct. 12. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties before this court. 13. So far as the submission with regard to the non-production of the attesting witness is concerned, it may be necessary to first consider the statutory provisions in this behalf. Section 63 of the Indian Succession Act, 1925 reads as follows:- “63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or 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) 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. (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 to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a person acknowledgment of his signature or mark, or 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.” 14. As would be evident from clause (c) of the above, the Will which is in writing shall be attested by two or more witnesses. The attesting witness must have seen the testator sign or affixed his mark to the Will and each of such attesting witnesses shall sign the Will in the presence of the testator. It is further not necessary that all the witnesses must be present at the same time and no particular form of attestation is necessary. 15. Section 68 of the Evidence Act which provides for the manner of the proof of execution of the Will reads as follows:- “68. Proof of execution of document required by law to be attested.- 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. 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 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” 16. 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 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” 16. The aforesaid provision requires that if a document is required by law to be attested, the same shall not be used in evidence unless one attesting witness has been called for the purpose and has been examined for proving the execution of the said document. The exception which has been provided is in event of the fact that none of the attesting witnesses are alive or that they are incapable of giving evidence. While the proviso to Section 68 of the Indian Evidence Act, 1872 makes an exception to the rule in so far as registered documents are concerned, to a Will which is an exception and in the case of a registered Will it is incumbent to examine the attesting witness. 17. As to what is meant by “attestation”, Section 3 of the Transfer of Property Act, 1882 defines “attested”. The said definition reads as follows:- “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” 18. The aforesaid definition is almost the same as is provided under Section 63 of the Indian Succession Act, 1925 which has been noticed hereinabove. The aforesaid definition is almost the same as is provided under Section 63 of the Indian Succession Act, 1925 which has been noticed hereinabove. It is now, therefore, necessary to examine whether AW-4 Pooranmal can be said to have fulfilled the requirement of the above provisions contained in Section 3 of the Transfer of Property Act, 1882, Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act and in the facts and circumstances of the present case can be said to be an attesting witness. The Will (Exhibit-1) has been signed the executant deceased by putting his thumb impression thereon on each page and at the places where the corrections have been carried out. It is also signed at the end at the bottom on page 3 by the deceased Bhagwan Sahai by putting his thumb impression. Three persons have signed along with the executant namely Jawahar Lal Jaiman, Kailash Chandra Sharma and Pooranmal, AW-4. Jawahar Lal Jaiman and Kailash Chandra Sharma have not been examined by the applicant-respondent in evidence. The sole person who has been examined is Pooranmal, AW-4 whose signature appear at E to F immediately below the thumb impression of the executant Bhagwan Sahai. The statement of AW-4 Poornmal reads as follows:- ^^nLrkost izn'kZ 1 esjs gkFk dk VkbZi fd;k gqvk gS tks eSaus Hkxoku lgk; ds dgus ls VkbZi fd;k FkkA izn'kZ 1 ij bZ ls ,Q esjs gLrk{kj gSA ;g izn'kZ 1 dks eSaus dpgjh vyoj esa VkbZi fd;k FkkA bldks fy[kus ds ckn eSaus i<+dj lquk;k Fkk] ftldks lgh ekudj Hkxoku lgk; us viuk vaxwBk fd;kA Hkxoku lgk; ds vaxwBs ds uhps tks bckjr fy[kh gqbZ gS og esjs gkFk gh gSA** 19. A look at the above statement goes to show that the witness has deposed that the document (Exhibit-1) was typed by him. He has further stated that same was typed at the instance of the deceased Bhagwan Sahai. The document after it was typed was read over by the witness to the executant Bhagwan Sahai who having accepted and acknowledged the contents of the same to be correct, put his thumb impression in execution of the same on the said document (Exhibit-1) and below the aforesaid thumb impression, the writing at E to F is in his handwritting. The document after it was typed was read over by the witness to the executant Bhagwan Sahai who having accepted and acknowledged the contents of the same to be correct, put his thumb impression in execution of the same on the said document (Exhibit-1) and below the aforesaid thumb impression, the writing at E to F is in his handwritting. A look at the Exhibit-1 at E to F below the thumb impression of Bhagwan Sahai shows that it is the signature of Pooranmal the witness AW-4. 20. The aforesaid testimony of AW-4 Pooranmal, if examined in the light of the definition of “attested” as provided under Section 3 of the Transfer of Property Act, 1882 as well as the Section 63 of the Indian Succession Act , 1925, it is clear that the witness had seen the executant signing/affixing his mark to the instrument and just below the thumb impression of the deceased executant, the said witness also put his signature at E to F on Exhibit-1, the Will dated 11.11.1982. 21. Learned counsel for the appellant sought to rely upon a decision of the Hon'ble Supreme Court in the case of Bhagat Ram and Another vs. Suresh and Others reported in 2003(12) SCC 35 and more particularly para 18 thereof. Para 18 of the said report reads as follows:- “18. However, facts of the present case are distinguishable from the facts of the Supreme Court decisions referred to by the learned Senior Counsel for Respondents 1 and 2. So far as the codicil is concerned, it can be said to have been dictated by Mast Ram in the presence of Ram Dutt, the witness and Vijay Singh Negi, the Registrar of Deeds. The statement having been recorded, Mast Ram signed the same in the presence of Ram Dutt and Vijay Singh Negi. Ram Dutt and Vijay Singh having seen Mast Ram signing the document, both of them put their signatures on the document, obviously with a view to attesting the signatures of Mast Ram. This is what appears to have taken place by a look at the contents of the codicil below the Will. But the codicil cannot be held to be proved merely by drawing upon the imagination. This is what appears to have taken place by a look at the contents of the codicil below the Will. But the codicil cannot be held to be proved merely by drawing upon the imagination. It was necessary on the part of the appellants to have examined Ram Dutt and/or Vijay Singh Negi so as to prove the execution and attestation of the codicil in the manner required by Section 63 of the Succession Act read with Section 68 of the Evidence Act. None of the two were produced in the witness box. The codicil cannot be said to have been proved.” 22. A bare perusal of the aforesaid judgment shows that same is clearly distinguishable on facts. In the aforesaid fact, the lacuna of attesting witness was sought to be cured on account of attestation by the Registrar of Deeds which is not so in the present case. In the present case AW-4, the Scribe and typist has been examined who is not only the typist but has deposed before the court that after typing the document, he read over the document to the deceased Bhagwan Sahai who accepted the same to be correct put his thumb impression on the same in execution of the document in his presence and having put his thumb impression on Exhibit-1, the witness put his signatures from E to F just below the thumb impression of the deceased Bhagwan Sahai. 23. In the facts and circumstances, therefore, merely because the respondent-applicant did not examine the two other witnesses named in the Will (Exhibit-1) namely Kailash Chand Sharma and Jawahar Lal Jaiman and has only examined Pooranmal, it cannot be said that the requirements of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act with regard to proving the Will have not been complied with. 24. In the facts and circumstances, the aforesaid contention of the learned counsel for the appellant is accordingly rejected. 25. The next contention of the learned counsel for the appellant was with regard to the suspicious circumstances. The circumstances, which have been pointed out are that the Will was executed on 11.11.1982 by Bhagwan Sahai, who passed away on 15.11.1982. 24. In the facts and circumstances, the aforesaid contention of the learned counsel for the appellant is accordingly rejected. 25. The next contention of the learned counsel for the appellant was with regard to the suspicious circumstances. The circumstances, which have been pointed out are that the Will was executed on 11.11.1982 by Bhagwan Sahai, who passed away on 15.11.1982. On the basis of the above, it was sought to be contended that the deceased being seriously ill was in no condition to understand the effect of his act of executing the Will and, therefore, the same is surrounded by suspicious circumstances. 26. So far as the above contention of the learned counsel for the appellant is concerned, the learned District Judge has discussed in detail in the impugned judgment while deciding the issue No.1 the aforesaid contention and has rejected the theory set up by the appellant that the Will cannot be relied upon as the same is surrounded by suspicious circumstances. I am in agreement with the findings of the learned District Judge in this behalf since the Will, firstly is a registered document. It is not the case that the deceased was not taken to the office of the Registrar and in his place somebody else had been brought before the Registrar to execute the Will. On the contrary, there is evidence of the appellant/objector's witness Amar Singh, OP-2 who had seen the deceased in the Tehsil Office (Sub-Registrar) about 5 to 7 days prior to his death. Thus, the fact stands established from the evidence of the objector himself that the deceased had 5 to 7 days prior to his death gone to the office of Sub-Registrar. In that view of the matter, the testimony of the applicant-respondent and her witness that the deceased went to the office of Sub-Registrar for the execution of the Will and registration of the same before the Sub-Registrar cannot be denied. In that view of the matter, the testimony of the applicant-respondent and her witness that the deceased went to the office of Sub-Registrar for the execution of the Will and registration of the same before the Sub-Registrar cannot be denied. A look at the Will (Exhibit-1) goes to show that the same is a registered document duly registered by the Sub-Registrar and which bears the following endorsements:- ^^vkt fn- 11-11-82 dks le; 2 vkSj 3 cts ds e/; mi iath;d Fkkukxkth ds dk;kZy; esa le{k Jh Hkxoku lgk; iq= Jh jkejru xzk-lk- izrkix<+ }kjk ys[k i= iath;u gsrq izLrqr fd;k x;kA T.I. Hkxoku lgk; SD/-mi iath;dFkkukxkth ¼vyoj½ Jh Hkxoku lgk; iq= Jh jkejru xzk-lk- izrkix<+ rg- Fkkjkxkth us etewu nLrkost lqu o le> dj lgh gksuk rLyhe fd;kA olh;rdrkZ us Jhefr jkts'ojh nsoh L=h Jh jke fcgkjh mQZ pUnz fcgkjh xzk- izrkix<+ ds uke olh;r djuk Lohdkj fd;kA 11-11-82 T.I. Hkxoku lgk; SD/-mi iath;dFkkukxkth ¼vyoj½ olh;rdrkZ dh 'kuk[r Jh lUrks"k dqekj iq= Jh ek/kksukjk;.k xzk-lk- izrkix<+ o Jh izrki ukjk;.k iq= Jh txUukFk xzk-lk- izrkix<+ rg= Fkkukxkth us dh vr% ;g nLrkost rLnhd fd;k tkrk gSA fn- 11-11-82 T.I. lUrks"k dqekj 'kekZ SD/-izrki ukjk;.kiq= Jh txUukFk SD/-mi iath;dFkkukxkth ¼vyoj½ olh;rdrkZ o 'kuk[r drkZvksa ds fu-v- o gLrk- gekjs lkeus djk;s x;sA 11-11-82 SD/-mi iath;dFkkukxkth ¼vyoj½ A perusal of the above endorsements which have been made by the Sub Registrar clearly go to show along with the testimony of the objector's witness Amar Singh, OP-2 and the witnesses of the applicant that the deceased himself had gone to the office of the Sub Registrar about 5 days prior to his death, as admitted by the Objector Witness Amar Singh. He presented the Will before the Sub Registrar. The Sub Registrar read over the document to the executant who having understood the same accepted the contents thereof of having executed his Will in favour of Rajeshwari Devi, the respondent and in acceptance of the aforesaid put his thumb impression on the document in the presence of the Sub Registrar. The deceased was identified by two independent witnesses Santosh Kumar and Pratap Narayan and Santosh Kumar has been examined by the respondent-applicant as AW-3 at the trial. 27. The deceased was identified by two independent witnesses Santosh Kumar and Pratap Narayan and Santosh Kumar has been examined by the respondent-applicant as AW-3 at the trial. 27. In the facts and circumstances, therefore, the endorsements made by the Sub Registrar and the fact that the document was registered with the endorsements noted above dispels all doubts and negatives the contention of the learned counsel for the appellant that the deceased was in no position to understand the impact of his act of having executed the Will in favour of the respondent Smt.Rajeshwari Devi as the endorsement of the Sub Registrar is that Bhagwan Sahai - us etewu nLrkost lqu le>dj lgh gksuk rLyhe fd;k and further olh;r djuk Lohdkj fd;kA 28. In the facts and circumstances of the present case, therefore, the mere proximity of the time between the execution of the Will and the death of executant is not sufficient to hold that the Will is surrounded by suspicious circumstances and that the deceased was seriously ill and was incapable of understanding the consequences of his act cannot be accepted in the light of the express endorsements made on the Will by the Sub Registrar before whom the deceased was present and was duly identified and the endorsements of the Sub Registrar to the effect that on the Will having been read over to the deceased and explained to him that he had bequeathed the property mentioned therein in favour of the respondent Smt.Rajeshwari Devi by the Will in question and the aforesaid fact having been acknowledged by him by putting his thumb impression in acknowledgment of the aforesaid fact in the presence of the Sub Registrar who has not put any endorsement to suggest that the deceased was unable to understand the implications of what was written in the document negatives the contention of the appellant. The endorsement made by the Sub Registrar while registering the document in accordance with the provisions of the Registrar Act, 1908 raises a strong presumption that the official acts were regularly performed as provided under clause (e) of Section 114 of the Indian Evidence Act, 1872. 29. In the facts and circumstances, I find no reason to interfere with the findings of the learned District Judge while deciding the issue No.1 and the contentions of the learned counsel for the appellant are accordingly rejected. 30. 29. In the facts and circumstances, I find no reason to interfere with the findings of the learned District Judge while deciding the issue No.1 and the contentions of the learned counsel for the appellant are accordingly rejected. 30. The next submission of the learned counsel for the appellant is that the amount lying in the post office savings account was in the joint name of the deceased as well as of the appellant and, therefore, in the event of the death of one of them, the said amount was liable to be withdrawn by the appellant alone. 31. In this behalf, learned counsel for the appellant has relied upon the Post Office Time Deposit Rules, 1981 and has contended that the account in question was A-Type account which was a joint account and Rule 11(4) of the Rules of 1981 provides as under:- “(4) On the death of one of the depositors in a joint account, the surviving depositor shall be treated as the sole owner of the account and he may continue the account or deal with it in the manner specified under sub-rule (3).” 32. On the basis of the above, it is sought to be contended that the account in question being in the joint name of the deceased Bhagwan Sahai and of the appellant Rokad Chand on account of the death of Bhagwan Sahai, the appellant being the surviving depositor would become the sole owner of the account. 33. I have given my thoughtful consideration to the aforesaid submission of the learned counsel for the appellant. However, I am unable to persuade myself to accept the same. While it is true that the account was a joint account, the table provided in the rules reads as follows:- Type of Account Whommay open Number ofaccountsthat may be opened Who mayoperatethe account (1) (2) (3) (4) 1. xx xx xx 2. Joint Account. (a) A-Type that is to say, payable to both jointly or survivor Two adults. One of more accounts Both the depositors jointly or survivor (b) xx xx xx xx xx xx 34. xx xx xx 2. Joint Account. (a) A-Type that is to say, payable to both jointly or survivor Two adults. One of more accounts Both the depositors jointly or survivor (b) xx xx xx xx xx xx 34. In view of the aforesaid provisions as contained in the Rules under the table on which reliance has been placed and Rule 11(4) of the Rules quoted above, I am of the view that the aforesaid provisions under the Rules of 1981 have been made for the post office to deal with such account and make the payment to the surviving depositor considering him to be the sole owner so far as the post office is concerned. However, so far as the rights with regard to the amount lying in deposit are concerned where an heir of the deceased depositor claims the amount as being the estate of the deceased alone in spite of the fact that the amount was a joint one, the alone survivor of the account cannot on the basis of the Rule 11(4) read with the provisions contained in the table to the Rules of 1981 deny the right to the heirs of the deceased account holder in accordance with the law of succession whether testamentary or intestate. In such a case where the heir claims the amount, the heir would be required to show that the amount lying in deposit belonged to the deceased and was part of the estate of the deceased and the claimant has a right to succeed to the same either on account of intestate succession or on the basis of testamentary succession. The provisions in the Rules of 1981 would not override the general law of succession. Moreover, it is not clear as to what is the statutory sanction of the Post Office Time Deposit Rules, 1981 i.e. whether these rules are statutory or merely administrative instructions as in that case they would not confer any right on the appellant. Be that as it may, the personal law relating to succession would override any such Rule. 35. The purpose of Rule 11(4) of the Rules of 1981 is only to facilitate the post office to deal with the aforesaid account and an analogy may be drawn from the cases relating to Insurance where nominations are made by the insured in the insurance policies. 35. The purpose of Rule 11(4) of the Rules of 1981 is only to facilitate the post office to deal with the aforesaid account and an analogy may be drawn from the cases relating to Insurance where nominations are made by the insured in the insurance policies. It is settled law that a nominee is a mere trustee. In this behalf the judgment of the Hon'ble Supreme Court in the case of Smt.Sarbati Devi and Another vs. Smt.Usha Devi reported in AIR 1984 SC 346 can safely be relied upon. Based upon Section 39 of the Insurance Act, 1938, the Hon'ble Supreme clearly held that Section 39 does not have the effect of conferring on the nominee any beneficial interest in the amount payable. The nomination only indicates the hand which is authorized to receive the amount so as to discharge the liability of the Insurer. The amount so received by the nominee can be claimed by the heirs of the assured as per the personal law relating to the succession. Section 39(1) of the Insurance Act, 1938 which was considered by the Hon'ble Supreme Court reads as follows:- “39. Nomination by policy-holder.- (1) The holder of a policy of life insurance on his own life may, when effecting the policy or at any time before the policy matures for payment, nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death.” 36. Their Lordships of the Hon'ble Supreme Court while dealing with the Section 39 of the Act of 1938 explained in para 5 of the report as follows:- “.....But the summary of the relevant provisions of Section 39 given above establishes clearly that the policy holder continues to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during the lifetime of the policy holder. If that is so, on the death of the policy holder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. Such succession may be testamentary or intestate. .... The provision in sub-section (6) of Section 39 which says that the amount shall be payable to the nominee or nominees does not mean that the amount shall belong to the nominee or nominees. Such succession may be testamentary or intestate. .... The provision in sub-section (6) of Section 39 which says that the amount shall be payable to the nominee or nominees does not mean that the amount shall belong to the nominee or nominees. We have to bear in mind here the special care which law and judicial precedents take in the matter of execution and proof of wills which have the effect of diverting the estate from the ordinary course of intestate succession and that the rigour of the rules governing the testamentary succession is not relaxed even where wills are registered.” In para 8 of the said report, their Lordships further held as follows:- “.....We are of the view that the language of Section 39 of the Act is not capable of altering the course of succession under law.” Their Lordships then summarized the position in para 12 of the report as follows:- “..... mere nomination made under Section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.” 37. In the instant case, it has come in the evidence that the deceased was a retired government servant receiving pension and the amount which was lying in the deposit in the post office savings account was the savings from his pension it has also come in evidence that the appellant Rokad Chand is an employee with the Postal department (See statement of OP-1). In this respect the Will (Exhibit-1) executed by the deceased clearly states that the amount of Rs.6,000/- lying in the post office belongs to the deceased. In this respect the Will (Exhibit-1) executed by the deceased clearly states that the amount of Rs.6,000/- lying in the post office belongs to the deceased. The appellant has also produced the alleged Will executed by the deceased as Exhibit-A/1 and it is interesting to see that in the aforesaid will also the recital is as follows:- ^^iksLV vkWfQl es esjh jde tek'kqnk vkfn tks Hkh gS ml leLr ds ekfyd okfjl jksdM pUn] pUn fcgkjh mQZ jke fcgkjh filjku fcj/kh pUn czkã.k fuoklh pkrkdkckl gky vyoj izrkix<+ rglhy Fkkukxkth ftyk vyoj jktLFkku ekfyd okfjl gksaxs ftu jksdM+ pUn] pUn fcgkjh mQZ jke fcgkjh dk gd fgLlk esjh leLr izdkj dh lEifÙk esa fgLlk cjkcj gksxkA** In the list of properties, Item No.8 reads as follows:- ^^esjh jde iksLV vkWfQl esa tek gSA esjs djus ds ckn tks jde esjh iksLV vkWfQl esa 'ks"k jgs dks ysus ds gdnkj jksdM pUn] pUn fcgkjh mQZ jke fcgkjh gksaxsA** 38. Thus, so far as the amount lying in the post office is concerned even from the document produced by the respondent, it is clear that the amount lying in deposit was the savings of the deceased Bhagwan Sahai from his pension and belong to him exclusively as per the above narration. The learned District Judge, in my opinion, has rightly observed that the name of the appellant was incorporated in the joint account only on account of the fact that the appellant was an employee with the post office and was probably instrumental in getting the aforesaid account opened, that is a probability which cannot be denied. Though it is another matter how this fact of the post office savings account came to be recorded in this Will executed in 1973 when the account was opened by the deceased in the year 1982. 39. In the facts and circumstances, therefore, there is no error in holding that the amount lying in deposit in the Post Office belonged to the deceased exclusively and the appellant had no contribution in the aforesaid deposit and was exclusively the part of the estate of the deceased. 39. In the facts and circumstances, therefore, there is no error in holding that the amount lying in deposit in the Post Office belonged to the deceased exclusively and the appellant had no contribution in the aforesaid deposit and was exclusively the part of the estate of the deceased. It is safe to conclude, therefore, in the facts and circumstances of this case, that merely because the account was a joint one of the deceased along with the appellant, who survived him, the provisions under Rule 11(4), quoted above of the Post Office Time Deposit Rules, 1981 is only to enable and facilitate the post office to deal with the aforesaid deposit with the surviving account holder but in no manner can it take away the rights of the heirs of the deceased as per their personal law to be entitled to prove that the amount lying in deposit, as in this case, was the estate of the deceased and that the claimants are entitled to receive the same in accordance with their personal law of succession, as held by the Hon'ble Supreme Court. 40. I would accordingly hold that despite the fact that the account was a joint one, since it has been proved, in the present case that the amount lying in deposit was his savings from the pension which he received, that the amount lying in the deposit was exclusive property of the deceased and upon his death became the estate of the deceased and the applicant-respondent would be entitled to receive the same on the basis of the Will made by the deceased which has been held to be duly executed and proved. 41. The last submission of the learned counsel for the appellant is that the application being one under Section 372 of the Indian Succession Act, the learned District Judge could not have given a declaration while allowing the application that the applicant-respondent is the heir of the deceased. In this regard Section 377 of the Indian Succession Act may be looked into which provides as follows:- “377. Forms of certificate and extended certificate.- Certificates shall be granted and extensions of certificates shall be made, as nearly as circumstances admit, in the forms set forth in Schedule VIII.” 42. In this regard Section 377 of the Indian Succession Act may be looked into which provides as follows:- “377. Forms of certificate and extended certificate.- Certificates shall be granted and extensions of certificates shall be made, as nearly as circumstances admit, in the forms set forth in Schedule VIII.” 42. Thus, so far as the certificate itself is concerned, the same is required to be in the form provided under the Schedule VIII appended to the Act. Nonetheless, so far as the impugned order is concerned, that only deals with the operative portion of the order wherein the applicant-respondent has been held to be the heir on the basis of the Will dated 11.11.1982 on account of the findings on Issues No.1 and 3. It is on the basis of the above that in the operative portion, the learned District Judge has ordered that the respondent-applicant would be entitled to receive the amount lying in deposit in the post office at Pratapgarh in account No.156721 and has further directed that after the receipt of the stamp duty, the certificate in favour of the applicant be issued in respect of the aforesaid amount. 43. Since the claim of the applicant was based upon the Will and the parties went to trial on issue No.1 which has been decided in favour of the applicant-respondent, I find no error in the order passed by the learned District Judge, in the facts and circumstances of the present case. In the facts and circumstances, this appeal accordingly stands dismissed. There shall be no order as to costs.

Roked Chand v. Rajeshwari Devi