JUDGMENT
Hemant Gupta, J.
1. The defendants are in second appeal aggrieved against the decree for possession passed in favour of the plaintiff-respondents by the learned first Appellate Court.
2. Saon Singh, father of the plaintiffs and that of the defendant-appellants, was owner of the suit land. He died on 5.1.1987. The plaintiff claimed the estate of Saon Singh on the basis of natural succession being Class-I heir whereas defendants No.l to 3 relied upon Will dated 15.6.1983. Apart from relying upon the Will, the defendant-appellants took up the stand that plaintiff No. 1 is not son of Saon Singh as he was adopted by Jangir Kaur, sister and her husband Kapoor Singh. Plaintiff No. 1 was brought up, educated and treated as son by Kapoor Singh and Jangir Kaur and that Mohinder Singh has been given property by Kapoor Singh and Jangir Kaur. Thus, he has forfeited all the rights in the family of Saon Singh.
3. The learned trial Court held that plaintiff No.l was adopted by Jangir Kaur and Kapoor Singh and that he has forfeited all the rights in his natural family. The learned trial Court also held that Will dated 15.6.1983 is proved to be executed on the basis of the statement of Registration Officer although none of the attesting witnesses have supported the execution of the Will and, thus, dismissed the suit. In appeal the learned first Appellate Court reversed the findings on both the issues and, thus granted decree in favour of the plaintiff-respondents.
4. The learned first Appellate Court has held that material witness of adoption, namely, Jangir Kaur and her husband as well as Saon Singh and his wife Tej Kaur have died. After carefully scrutinising other oral and documentary evidence, the Court reversed the findings. One of the factors which has been taken into consideration is that the suit filed by Mohinder Singh against his father Saon Singh on 9.8.1983 was withdrawn after Saron Singh has given statement admitting Mohinder Singh to be his son. Still further, the Court has relied upon the recital in the Will to the effect that Mohinder Singh was adopted by Jangir Kaur when he was a small child of 10-11 years prior to the execution of the Will. The period of alleged adoption comes to 1973-74 whereas Mohinder Singh was 24 years of age in the year 1973 having born on 13.06.1949 vide ma- triculation certificate Exhibit P-9. It was, thus, held that adoption is permissible only of a person below the age of .15 years and, thus, Mohinder Singh is not proved to be adopted as Mohinder Singh was more than 15 years of age at the time of alleged adoption even as per recital in the Will. Still further, the Court has relied upon sale deed dated 6.6.1967 wherein the land was purchased from Ram Chand wherein father’s name of Mohinder Singh is that of Saron Singh.
5. Learned counsel for the appellants has relied upon the statement of DW6 Balbir Singh, uncle of the parties. However, the learned first Appellate Court has given detailed and cogent reasons to reject the testimony of the said witness. Reference was made to sale deed dated 14.06.1973, Exhibit P3, i.e. about 10 years after the alleged adoption of Mohinder Singh. Vide the said sale deed, property has been purchased in the name of Datar Singh son of Balbir Singh and also in the name of all the sons of Saon Singh including Mohinder Singh. Still relying upon the conduct of the alleged adoptive parents of Mohinder Singh wherein sale deed dated 4.5.1974, Exhibit P4, and sale deed dated 18.4.1974, Exhibit P5, has been executed in favour of Mohinder Singh with father’s name as Saon Singh. Even Jangir Kaur has suffered a consent decree in favour of Mohinder Singh on 11.9.1982. Exhibit D3. In the said decree, father’s name of Mohinder Singh has been mentioned as Saon Singh. The learned first Appellate Court has further relied upon two separate suits filed by Hakam Singh and Deputy Singh against the legal heirs of Saon Singh for recovery of money obtained by Saon Singh before his death. Mohinder Singh is impleaded in the said suit again as son of Saon Singh.
6. The learned first Appellate Court has discussed the entire evidence in detail to return a finding that the plaintiff Mohinder Singh is not proved to be adoptive son of Jangir Kaur and Kapoor Singh. Such finding is based upon appreciation of evidence which is sought to be disputed only by reapplication of evidence.
7. The learned counsel for the appellants has then relied upon Will dated 15.6.1983. Admittedly, both the attesting witnesses have appeared as a witness but not supported the execution of the Will. DW4 Gurdev Singh has deposed that his signatures of the Will were obtained at his residence by Balwinder Singh, whereas DW5 Kaka Singh has deposed that he signed the Will but Saon Singh has not signed the Will in his presence. The appellants relied upon the statement of DW1 Gurcharan Singh, Joint Sub Registrar and DW2 Lachhi Ram, Petition Writer, for proof of the Will. The learned first Appellate Court held that the statement of Sub Registrar cannot be treated as statement of an attesting witness. Reliance was placed upon the judgments of the Hon’ble Supreme Court in the case of Dharam Singh v. Aso and Anr., A.I.R. 1990 S.C. 1888 and M.L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and Ors., A.I.R. 1969 S.C. 1147.
8. Before this Court in second appeal, learned counsel for the appellants has referred to Single Bench judgments of this Court reported as Jarnail Singh v. Narain Singh and. others, A.I.R. 1984 Punjab & Haryana 181; Amar Kaur v. Paramjit Kaur, 2003(3) Recent Civil Reports 213; Lila Dhar v. Smt. Badho and Anr., (1994-1)106 Punjab Law Reporter 525; and Rabindra Nath Mukherjee v. Panchanana Banerjee (dead) by LRs and Ors., (1995-3) 111 P.L.R. 594 (S.C.) and argued that the testimony of Sub Registrar is that of attesting witness.
9. It was argued that since the attesting witnesses have turned hostile, therefore, the execution of the Will can be proved by other evidence. Reference was made to Section 71 of the Evidence Act and reliance was also placed on the judgment of Hon’ble Supreme Court reported as Janki Narayan Bhoir v. Narayan Namdeo Kadam, A.I.R. 2003 S.C. 761.
10. In terms of Section 63 of the Indian Succession Act, the Will is required to be attested by two or more witnesses each of whom has seen the testator signing or affixing his thumb impressions on the Will. Once the Will is executed in terms of Section 63 of the Indian Succession Act, the same is required to be proved before the Court in terms of Section 68 of the Evidence Act. It contemplates that if a document is required to be attested, it shall not be used as evidence unless one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive. Still further, section 71 of the Evidence Act contemplates that if the attesting witness denies or does not recollect the execution of the document,its execution may by proved by other evidence.
11. In view of the above, the following substantial questions of law arise for consideration:-
1. Whether the appellants are entitled to prove the execution of the Will by other evidence in terms of Section 71 of the Evidence Act in view of the fact that the execution of the Will is not proved on the basis of statement of the attesting witnesses?
2. Whether the evidence of the Sub Registrar and of scribe can be taken into consideration for proof of Will?
12. In Janki Narayan Bhoir’s case (supra), Hon’ble Supreme Court has discussed the law of proof of Will and held that the Will is required to be executed in terms of Section 63 of the Indian Succession Act, 1925. It can be proved on the basis of testimony of one of the attesting witnesses. However, if both the attesting witness does not support the execution of the Will then it will be the case of deficiency of meeting the requirement of Section 68 of the Indian Evidence Act. In the above case, Hon’ble Supreme Court has considered Section 71 of the Evidence Act which contemplates that if the attesting witnesses denies or does not recollect the execution of the document, its execution may be proved by other evidence. In the present case, the attesting witnesses have deposed that they have signed the Will but not at the same time and in the presence of the testator. Such statements of the witnesses does not prove the execution of the Will. It is only if the witness denied his own signatures or denied the signatures of the testator or having not recalled as to the execution of the document, Section 71 of the Evidence Act could be used by the propounder but not in a case where the attesting witnesses have given a positive statement that they have signed the Will not at the time, the testator signed the said Will. In fact, a Division Bench of Bombay High Court in the case reported as Vishnu Ramkrishna and Ors. v. Nathu Vithal and Ors., A.LR. 1949 Bombay 266, has held that Section 71 of the Evidence Act can be requisitioned when the attesting witnesses failed to prove the execution of the Will by reason of either denying their own signatures or denying the signature of the testator. It was held to the following effect:-
“In this connection our attention was drawn to S.71, Evidence Act. It provides that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. This is a sort of a safeguard introduced by the legislature to the mandatory provisions of S.68, where it is not possible to prove the execution of the Will by calling attesting witnesses, though alive. Section 71 can only be requisitioned when the attesting witnesses who have been called fail to prove the execution of the Will by reason of either their denying their own signatures, or denying the signature of the testatory, or having no recollection as to the execution of the document. Section 71, in our opinion, has no application when one attesting witness has failed to prove the execution of the Will and other attesting witnesses are available who could prove the execution if they were called…”
13. In the present case, the attesting witnesses have neither denied their signatures or signature of the testator. What is stated by them is that they have not signed the Will in the presence of the testator and in the presence of each other. Section 71 of the Evidence Act enable the propounder of the Will to prove the Will by other evidence only if the attesting witness has denied his signatures on the document itself. When there is a positive statement of the “attesting witness” that the Will was not signed in his presence, the propounder of the Will cannot lead evidence to prove such Will in terms of Section 71 of the Evidence Act.
14. In M.L.Abdul Jabbar Sahib’s case (supra), following observations are relevant:-
“9. “In every case the Court must be satisfied that the names were written animo attestandi, see Jarman on Wills, 8th Ed. P. 137. Evidence is admissible to show whether the witness had the intention to attest.” The attesting witnesses must subscribe with the intention that the subscription made should be complete attestation of the Will, and evidence is admissible to show whether such was the intention or not” see Theobald on Wills, 12th Ed. P.129. In Girja Datt v. Gangotri, A.I.R. 1955 S.C. 346 (351) the Court held that the two persons who had identified the testator at the time of the registration of the Will and had appended their signatures at the foot of the endorsement by the Sub-Registrar, were not attesting witnesses as their signatures were not put “animo attestandi”. In Abinash Chatidra v. Dasrath Malo, I.L.R. 56 Cal 598=(A.JLR. 1929 Cal 123) it was held that a person who had put his name under the word “scribe” was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a “scribe”. In Shiam Sunder Singh v. Jagannath Singh, 54 Mad.L.J 43=(A.I.R. 1927 P.C. 248) the Privy Council held that the legatees who had put their signatures on the Will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees.
10. The Indian Registration Act, 1908, lays down a detailed procedure for registration of documents. The Registering Officer is under a duty to enquire whether the document is executed by the person by whom it purports to have been executed and to satisfy himself as to the identity of the executant; Section 34(3). He can register the document if he is satisfied about the identity of the person executing the document and if that person admits execution; (Section 35(1). The signatures of the executant and of every person examined with reference to the document are endorsed on the document, (Section 58). The registering officer is required to affix the date and his signature to the endorsements; (Section 59). Prima facie, the registering officer puts his signature on the document in discharge of his statutory duty under section 59 of Registration Act and for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgement of his signature.”
15. In the said case, it was concluded that the registering officer has not put his signatures on the document with the intention of attesting it. It is not proved that he signed the document in the presence of the executant and, therefore, it was concluded that he cannot be treated as an attesting witness.
16. Subsequently, Hon’ble Supreme Court in Dharam Singh’s case (supra), was seized of the matter wherein two attesting witnesses did not support the execution of the Will but the trial Court relying upon the testimony of registering officer held that, the Will stands proved. However, the learned first Appellate Court relying upon M.L. Abdul Jabbar Sahi’s case (supra) and Beni Chand (since dead) now by LRs. v. Smt. Kamla Kunwar, A.I.R. 1977 S.C. 63, reversed the judgment and decree of the trial Court. High Court dismissed the second appeal which order was maintained by the Hon’ble Supreme Court.
17. The matter was considered by Hon’ble Supreme Court in the case reported as Kashibai w/o Lachiram and Anr. v. Parwatibai w/o lachiram and Ors., Judgments Today 1995(7) Supreme Court 48. A distinction has been drawn between “attestation” and “execution”. It has been held that attestation and execution are two different acts one following the other. There can be no valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail. It was held that an attesting witness is a person who in the presence of an executant of a document puts his signature or mark after he has either seen the executant himself or someone on direction of the executant has put his signature or affixed his mark on the document so required to be attested. It was held to the following effect:-
“Having regard to the afore-mentioned definition an attesting witness is a person who in the presence of an executant of a document puts his signature or mark after he has either seen the executant himself or someone on direction of the executant has put his signature or affixed his mark on the document so required to be attested or after he has received from the executant a personal acknowledgment of his signature or make or the signature or mark of such other person…”
18. Still further, Hon’ble Supreme Court in the case reported as N. Kamalam (dead) and Anr. v. Ayyasamy and Anr., (2001)7 Supreme Court Cases 503, has held that the Latin expression onus probandi and animo attestandi are the two basic features in the matter of civil court’s exercise of testamentary jurisdiction. The expression animo attestandi means and implies animus to attest; it means intent to attest. The attesting witness must subscribe with the intent that the subscription of the signature made stands by way of a complete attestation of the Will and the evidence is admissible to show whether such was the intention or not. It has been held that the scribe cannot be treated as an attesting witness as he has not signed the Will as an attesting witness but merely as a scribe. The following relevant observations are reproduced:-
“The Latin expressions onus probandi and animo attestandi are the two basic features in the matter of the civil court’s exercise of testamentary jurisdiction. Whereas onus probandi lies in every case upon the party propounding a Will, the expression animo attestandi means and implies animus to attest; to put it differently and in common parlance, it means intent to attest. As regards the latter maxim, the attesting witness must subscribe with the intent that the subscription of the signature made stands by way of a complete attestation of the Will and the evidence is admissible to show whether such was the intention or not.”..
25. The requirement of attestation presently in the country is statutory in nature, as noticed hereinbefore, and cannot as such be done away with under any circumstances. While it is true that in a testamentary disposition, the intent of the attestor shall have to be assessed in its proper perspective but that does not however mean and imply non-compliance with a statutory requirement. The intention of the attestor and its paramount importance cannot thwart the statutory requirement. No doubt, the scribe has subscribed his signature but a scribe in accordance with common English parlance means and implies the person who writes the document. Significantly, however in England the King’s Secretary is popularly known as Scribaregis. Be that as it may, in common parlance an attribute of scribe as a mere writer as noted above, doss not stretch the matter further. In the contextual facts, while the writer did, in fact, subscribe his signature but the same docs not underrate the statutory requirement of attestation as more fully described hereinbefore…”
26. The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of the same status as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document, requiring attestation (admittedly in the case of a Will the same is required), is a requirement of the statute, thus cannot be equated with that of the scribe…”
27. It was next contended that in the event of there being an intent to attest, that itself should be sufficient compliance with the requirement of law. While the introduction of the concept of animus to attest cannot be doubted in any way whatsoever and we also do feel it relevant in the matter of proof of a document requiring attestation by relevant statutes but the same is dependent on the fact situation. The learned Judge as noticed above has himself recorded that there are two significant requirements of the term “attest” viz. that the attestor should witness the execution thereby thus implying his presence on the occasion and secondly that he should certify for execution by subscribing his name as a witness which implies consciousness and. intention to attest. Unfortunately, however, the factual score presently available docs not but depict otherwise. The scribe’s presence cannot be doubted but the issue is not what it is being said to be in support of the appeal that the scribe having subscribed his signature, question of further attestation would not arise-this issue unfortunately, we are not in a position to lend concurrence with …. The animus to attest thus, is not available, so far as the scribe is concerned: he is not a witness to the Will but a mere writer of the Will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer..”
19. Keeping in view the principles of law laid down in the above judgments, I am of the opinion that the judgments referred to by the learned counsel for the appellants are distinguishable on facts. In this present case, the Sub Registrar has stated that he has read over the Will at the time of registration of the Will. As per the case of the defendants themselves, the Will was already attested. Neither the testator nor the attesting witnesses of the Will have signed the Will in the presence of the Sub Registrar. Therefore, from the statement of Sub Registrar, it cannot be said that the execution of the Will is proved. In view of the judgments referred to above, the Sub Registrar has not attested the Will with intention to attest the Will as a witness and, therefore, his statement cannot be taken as that of an attesting witness. Similarly, the statement of the scribe is not also sufficient to prove the execution of the Will as held by the judgments referred to above.
20. In view of the above, I do not find any merit in the present appeal and is accordingly dismissed.
