JUDGMENT
S.P. Srivastava, J.
1. Feeling aggrieved by the order dismissing his appeal directed against the rejection of the application filed by the appellant under Section 372 of the Indian Succession Act for obtaining a Succession Certificate, he has now come up in this Letters Patent Appeal seeking redress praying for the reversal of the impugned order.
2. We have heard the learned counsel for the appellant as well as the learned counsel representing the contesting respondents and have also carefully perused the record.
3. The facts in brief, shorn of details and necessary for disposal of this appeal lie in narrow compass. Narain Singh Pal, who was employed as a Chowkidar in a Government Office, died in harness on 13-6-1995. He had married Smt. Hirobai and had a son Vircndra Singh Pal, Smt. Hirobai, however, died long back. On the death of Narain Singh Pal, Virendra Singh moved an application dated 1-7-1995 under Section 372 of the Indian Succession Act praying that a Succession Certificate be issued in his favour in respect of the Provident fund, gratuity and insurance amount to which Narainsingh Pal was entitled. In the aforesaid application it was alleged that apart from Virendra Singh there was no other heir or legal representative of deceased Narainsingh Pal, as his mother expired long ago and out of the legtimate issues of Narainsingh Pal, the applicant Virendrasingh Pal was the only person entitled to succeed him as there was no prcfessential heir.
4. The aforesaid application was contested by Smt. Kashibai and her two minor daughters and a minor son. She alleged that it was true that Narainsingh Pal, the deceased, had initially married Smt. Hirobai and out of this wedlock a son, Virendra Singh Pal, had been born, but after the death of Smt. Hirobai, Narainsingh Pal had married the objector, Kashibai, and out of the second marriage Ku. Meena, daughter age 14 years, Ganesh Pal, son aged 10 years and Ku. Lima, daughter aged 4 years, had been born. Kashibai alsoclaimed that she had been nominated by deceased, Narainsingh Pal, to receive the monetary benefits relating to the Provident fund, gratuity and insurance in respect of which a succession certificate was being claimed by Virendrasingh Pal. Kashibai also asserted that deceased Narainsingh Pal had executed a will in her favour as well as in favour of his son, Ganesh Pal, on 9th Feb. 1995 and in view of the stipulations contained in the aforesaid Will Virendrasingh Pal stood clearly dishcrited and had no right, title and interest in the amounts in dispute.
5. In support of his case Virendrasingh Pal examined besides himself Rambharose Pal as a witness. Kashibai, the objector, in support of her case examined besides herself Satya Narain Sharma as a witness. She also produced the original Will, claimed to have been executed by deceased Narainsingh.
6. In his deposition Virendrasingh Pal asserted that his father Narainsingh Pal had never married Kashibai. He, however, admitted that the deceased had nominated her to receive the amount in dispute. He further asserted that Narainsingh Pal had not executed any will as claimed. However, the fact that Narainsingh Pal was living with Kashibai was not disputed. He expressed his total ignorance as to whether Ku. Munni, Ganesh and Uma were born in the house in which Narainsingh Pal resided along with Kashibai.
7. The trial Court found that the evidence led by Kashibai in support of her case the her having been married with Narainsingh Pal and that Ku. Munni, Ganesh and Ku. Uma had been born out of that wedlock was worthy of credit and reliable. The trial Court, therefore, found it to have been established that Kashibai was the wife of the deceased Narainsingh Pal and Ku. Munni, Ganesh and Ku. Uma were his daughters and son. The trial Court also found the will in question to have been duly executed.
8. On the aforesaid findings disbelieving the case set up by Virendrasingh Pal the his being the only successor in interest of Narendrasingh Pal his application for succession certificate was rejected.
9. The aforesaid order was challenged by Virendrasingh Pal in an appeal before this Court. The learned single Judge of this Court vide the impugned order upheld the findings of the trial Court on the question relating to the marriage of Kashibai with deceased, Narendrasingh Pal. The learned single Judge further upheld the finding in regard to the due execution of the will set up by Kashibai whereunder it was claimed that deceased Narainsingh Pa! had bequeathed his right, title and interest in the amount in question in favour of his wife Kashibai and his son Ganesh. The learned single Judge observed that considering the material on record, the facts and circumstances of the case and the cumulative effect of all the factors (aken together showed that Kashibai was the validly married wife of deceased Narainsingh Pal, who was living with Narainsingh Pal in his house and the three children were born out of that wedlock and further considering the nomination of the deceased Narainsingh Pal the order passed by the trial Court could not be treated to be in any manner illegal.
10. The learned counsel for the appellant has strenuously urged that the evidence on record did not establish the fact that Kashibai had been married with Narainsingh Pal. He has tried to assail the findings of the trial Court as affirmed by the learned single Judge on the aforesaid question, on the ground that there was no evidence to indicate that Saptapadi had been performed which could alone bring into existence a marriage which could be recognised under the law. It has been pointed out that in her deposition even Kashibai had not said a word about performing of the Saptapadi although she claimed that the marriage had been performed according to Hindu rites.
11. The learned counsel for the contesting respondents has, however, urged that Kashibai was totally illiterate lady. He has asserted that she was married with Narainsingh Pal about 1/-18 years ago. Her evidence read together with the evidence of Satya Narain Sharma, who attended her marriage, clearly indicated and established that Narainsingh Pal and Kashibai were married and had been cohabiting for a long duration as husband and wife.
12. In case a marriage in fact is established there would be a presumption of a marriage in law. However, where the parties consistently, continuously and openly lived as husband and wife, cohabited together had three children and were regarded and recognised by friends and relations as husband and wife and enjoyed such a repute in general public, sufficient ground is made out for raising a presumption about the existence of a marriage and such a marriage in law carries with it the same rights and obligations on the parties as originate and flow from establishing a marriage in fact. The presumption of marriage on account of long cohabitation with habit and repute of that particular status which flows from a lawful marriage is further strengthened, in case the evidence on the record indicates that such union gave birth to children as there is a presumption in regard to the legitimacy of such children. The presumption of legitimacy necessarily involves that the union which gave birth to such children was lawful. The presumption in favour of a marriage as indicated above cannot be taken to have been rebutted in case the husband himself admits the marriage and such an admission has to be accepted as conclusive especially in the absence of any material to indicate that the admission had been obtained in a manner not recognised by law.
13. In fact, where the parties consistently, continuously and openly lived as husband and wife, cohabited together for a long period had children and were regarded and recognised by friends and relatives as husband and wife, it furnishes a clear evidence of marriage raising the presumption unless it is shown that the connection started in mere concubinage. Before raising the presumption of marriage arising from long cohabitation with habit and repute, it is necessary that the requisite conditions of a valid marriage stood satisfied in the sense that such a marriage was not prohibited under the law.
14. It must be emphasised that presumption in regard to marriage on the basis of evidence of habit and repute referred to hereinabove cannot be raised in a case where no valid marriage is possible or permissible under the law as no amount of evidence in regard to habit and repute could establish it in such a case. In other words, the presumption of legal marriage from cohabitation for long period is not available where it is not possible to have legal marriage.
15. In the present case, what we find is that no such fact or circumstance has been pleaded or proved which could indicate in any manner whatsoever that Kashibai was living in sin or the alleged marriage or the relationship had its origin in concubinage. Further, there is nothing on the record to indicate that no legal marriage could be permissible between them.
16. In the aforesaid circumstances taking into consideration the facts proved and established on record including the admission contained not only in the ‘will’ but also evident from the nomination we arc of the considered opinion that the Finding in regard to Kashibai having been married with Narainsingh Pal returned against the appellant is not liable to be disturbed and the said finding is hereby affirmed.
17. The learned counsel for the appellant has next contended that the Will relied upon by Kashibai could not be taken to have been executed in accordance with law and was liable to be ignored altogether. What has been asserted is that under the provisions contained in Section 63 of the Indian Succession Act it is required that the Will has to be attested by two witnesses. But in the present case this requirement was not complied. with. It is pointed out that from the evidence led by Kashibai as well as the attesting witness. Satya Narain Sharma it was apparent that attestation had been done prior to the execution of the Will by Narainsingh Pal and such an attestation could not be deemed to be an attestation as required under Section 63 of the Indian Succession Act. The contention is that such an attestation could not be taken to be an attestation of the signature of the execution in the manner as required under Section 63 of the Act, with the result that the Will in question could not be treated to have been duly attested and was liable to be ignored.
18. The provisions contained in Section 63 of the Indian Succession Act stipulates that the signature or mark of the testator, shall be so placed in the Will so as to appear that it was intended thereby to give effect to the writing as a Will, which shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will in the presence and by the direction of the testator or has received from the testator a personal acknowledgment 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.
19. A perusal of Section 63 of the Indian Succession Act makes it apparent that the Legislature intent underlying therein is to maintain a distinction between mere signing and attesting. It refers to the signing of a document for a particular purpose, that being to testify to the signature of the executant.
20. In the aforesaid view of the matter execution of the Will must be attested as required under Section 63 of the Indian Succession Act. Further, in the absence of the signature of the testator on the Will no question of attestation of the signatures of the executant of the Will can at arise.
21. In its decision in the case of Santilal v. Kamla Prasad, reported in AIR 1951 SC 477, the Apex Court had observed that as in that case the attesting witnesses had signed the deed before it was executed such an attestation was no attestation in the eye of law.
22. In the present case the attesting witness, Satya Narain Sharma, who had been examined as a witness by Kashibai, in his cross-examination had admitted that it was subsequent to the attestation by Bharatkishore and Satya Narain Sharma that the executant, Narainsingh Pal, had affixed his thumb mark on the Will. In other words, he had admitted that he as well as the other attesting witness had signed as attesting witnesses on the “Will” in question before the executant had put his thumb mark thereon. It is, therefore, apparent from a perusal of the statement of Satya Narain Sharma, one of the attesting witnesses, who alone had been examined in support of the Will set up by Kashibai that attestation had preceded the execution of the Will. Even in her statement, Kashibai, herself had admitted that attestation by Bharatkishore and Satya Narain Sharma had preceded the execution of the Will.
23. In the aforesaid circumstances the “Will” claimed to have been executed by Narayansingh Pal could not come to her rescue as the attestation of the said Will being no attestation in the eye of law, the said Will was liable to be ignored. The finding to the contrary returned against the present appellant, therefore, is not at all sustainable in law and is accordingly reversed.
24. However, even if the Will set up by Smt. Kashibai is to be ignored that could not entitle the present appellant to get the succession certificate, in his own favour alone, as claimed. We have already found that Narainsingh Pal had married Kashibai and Ku. Meena. Ganesh and Ku. Uma were his daughters and son, who were born out of their wedlock. Thus, Virendra Singh Pal as well as Smt. Kashibai, Ku. Meena, Ganesh and Ku. Uma all fell within the category of the heirs of Class I of Schedule I to the Hindu Succession Act and as provided under Section 8 thereof, were entitled to succeed the interest of Narainsingh Pal, the deceased, simultaneously with equal shares. All of them are, therefore, entitled to succession-certificate accordingly.
25. In view of the facts and circumstances brought on record and our conclusions indicated hereinabove this appeal succeeds in part.
26. The impugned order is modified with the direction to the trial Court to issue a succession certificate clearly indicating therein Kashibai, Virendrasingh Pal, Ku. Meena, Ganesh and Ku. Uma, as succession in interest of deceased Narainsingh Pal with equal shapes entitled to the amount in dispute accordingly.
27. However, considering the circumstances of the case’ (here shall be no order as to costs.