S.S. Subramani, J.
1. This testamentary suit is filed by two plaintiffs, who are admittedly the children of late J. Nagabooshanam Ammal, who died on 8.11.1984. Apart from the plaintiffs, deceased had left the defendant V. Mathibooshanam and one Mukuntharaman also as her children. It is said that Nagabooshanam Ammal had executed a will on 7.5.1980, bequeathing properties in favour of plaintiffs. No executor has been appointed. Plaintiffs undertake to administer the property. They say that they are the universal legatees, entitled to get Letters of Administration.
2. When caveat was entered by the daughter Mathibooshanam, the petition was converted into a testamentary suit.
3. In the written statement filed by the caveat or, she denied execution of any will by her mother and also put forward contentions questioning the genuineness of the will produced by the plaintiffs.
4. On the above pleadings, an issue was suggested namely, ‘whether the will dated 7.5.1980 is true, valid and genuine?
5. In this case, second plaintiff was examined as P.W. 1 and thereafter defendant examined herself as D.W. 1. Plaintiffs wanted an opportunity to reopen the matter, and on their application, on 22.8.1995,1 passed an order re-opening the case. I said that the plaintiffs will be given an opportunity to examine witnesses, not as court witnesses, but the plaintiffs have to take steps for examination of the attestors, and the case was posted to 31.8.1995. Thereafter, on the request of the plaintiffs, the case was being adjourned from time to time, and finally, there was not even a representation on the side of the plaintiffs. The case was posted for dismissal on 28.9.1995. On that day, it was represented that though steps were taken, summons were returned on the ground that there was no such person and, therefore, the plaintiffs requested that the matter may be adjourned further. The request was not granted, and the case was posted for arguments on 10.10.1995 and the matter was heard on 3.11.1995, and judgment was reserved. Thereafter, when the case was posted on 10.11.1995 for pronouncement of the judgment, plaintiffs filed Application Nos. 5896 and 5897 of 1995 requesting that the matter may be re-opened and that they may be permitted to examine a document writer as their witness. On 10.11.1995, these applications were allowed on condition that the plaintiffs should pay costs to the defendant on or before 17.11.1995. On 17.11.1995, it was presented that costs had been paid. Hence, I adjourned the case for examination of witnesses and directed the plaintiffs to produce the witness on 24.11.1995. Accordingly, the document writer was examined on 24.11.1995 and the case was posted for arguments on 1.12.1995, on which date at the request of the plaintiffs the suit was adjourned to 8.12.1995. On that date, arguments were heard.
6. Even though sufficient opportunity was given to the plaintiffs to prove the will, I do not think they have not availed the opportunity properly. The document writer cannot be treated as an attesting witness for the will which is marked for reference as Ex. P-1. The name of P.W. 2 is not seen anywhere in the original. In the certified copy that is produced on the day when P.W. 2 was examined, his name appears as a document writer. It is seen therefrom that the purpose of his signing the document is only to note that he prepared the same. When he signs the will only in his capacity as a document writer, he cannot be treated as an attesting witness. It has been so held by the Supreme Court in Abdul Jabbar v. Venkata Sastri and in Rajammal v. Chinnathai A.I.R. 1976 Mad. 4. In the earlier decision, their Lordships held thus:
The word ‘attested’ occurs in Section 3 of Transfer of Property Act, as part of the definition itself. To attest is to bear witness to a fact. The essential conditions of a valid attestation under Section 3 of Transfer of Property Act are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.
In the later decision of our High Court, which followed the aforementioned decision of the Supreme Court, it was held thus:
The language of Section 68 is clear and categorical and therefore once the execution of the document is denied by the alleged executant, the document cannot be admitted in evidence, unless one attesting witness at least has been called for proving the execution of the document, if alive, and subject to process of the court. The attesting witness must subscribe his signature with the intention that it should be complete attestation of the document and if this animo attestandi, is not present the giving of evidence by scribe as to his having written the document cannot be a valid attestation.
Since none of the attesting witnesses has been examined in this case, it must be held that the will is not proved.
7. An argument was taken on the side of the plaintiffs that since P.W.2 has spoken that he has seen the testatory signing the will and also that the testator having affixed the signatures in the presence of the attestors, he can be treated as an attesting witness.
8. There is one fallacy in this argument. In Ex. P-1 which is a typewritten document, there is a declaration that the testator signed in the presence of the attestors and the attestors signed in the presence of the testator. After the same was typed, that portion has been scored out entirely and we find that that portion has also been signed by the executant of that document. We can only presume from this that the declaration that the executant as well as the attestors mutually saw each other affixing the signature was intentionally scored out and witness appearing in Ex. P-1 might not have affixed the signature as sworn to by P.W. 2. There is an explanation by P.W. 2 for the same. According to him, it was the Sub Registrar who wanted the said portion to be scored out and he wanted the testator to sign in his presence, I cannot believe this statement, for a will is presented only after due execution which includes attestation also. There could not have been any necessity for the Sub Registrar, while registering the document, to direct the testator to score out that portion of the document mentioned above. P.W. 2 further states that at the time when he signed the document before the Sub Registrar, he signed the same only in his capacity as document writer and that he had no other intention in his mind. If that be so, there can be only one conclusion, i.e., that he never attested the will, nor had he any intention to attest the same.
9. It is not the case of the plaintiffs that the attestors are not alive. In fact, one of the attestors is none other than the brother of the first plaintiff. It is also not the case of the plaintiffs that he was not in good terms with them. At any rate, at least some secondary evidence should have been adduced on their side to prove the will. No attempt was made on their part to let in any secondary evidence. Even though sufficient opportunity was afforded to them, they did not avail the same properly.
10. In the result, I hold that the will is not proved, and that the suit is liable to be dismissed, and is accordingly dismissed. However, there will be no order as costs.