R.K Das, J.:— This appeal is directed against the decision dated 29-9-56 of Shri P.C De, Additional District Judge, Berhampur granting Letters of Administration with Will annexed in favour of the respondent in respect of the estate of one Annapurna Debi.

2. Deceased Annapurna Debi, the testatrix by her last will dated 13-10-52 gave away all her moveable and immoveable properties to her younger brother, Vaisya Raju Laxman Murty Raju, the respondent in this appeal. The testatrix who was married to Kotini Madhusudan Subudhi left her husband's home sometime prior to her death and came to her father's house at Konaiput where she executed this Will just two days prior to her death. The respondent filed an application u/s. 278 of the Indian Succession Act in the Court of the District Judge, Ganjam to prove the Will and to obtain necessary Letters of Administration.

3. The application was first opposed by Kotini Madhusudhan Subudhi, the husband of the testatrix and, after his death, by the present appellant, Kotini Rabi Narayan Subudhi, who was substituted as the legal representative of the said Madhusudhan Subudhi. The case of the appellant is that deceased Annapurna Debi, the second wife of Madhusudhan Subudhi bore no issue, — male or female. They brought up the appellant in their house from his infancy and adopted him. The appellant challenged the valid execution of the Will on the ground that she had no testamentary capacity or any sound disposing state of mind at the time of execution of the Will and that, it has not been executed or attested in accordance with law. The brothers of the testatrix managed to make a false Will with a view to get her properties. The learned Additional District Judge, however, negatived the contentions of the appellant and held that the Will (Ext. 1) was a genuine document: that the testatrix was in a sound disposing, state of mind; and that it was duly executed and attested. He, therefore, granted Letters of Administration to the applicant-respondent.

4. Mr. Sinha, the learned counsel for the appellant challenged the correctness of the decision of the Court below and raised the following contentions, viz., (i) that the Will has not been duly executed and attested in accordance with the requirements of law and (ii) that the testatrix was not in a sound disposing state of mind and had no independent advice available to her.

5. Before proceeding to examine the correctness of the contentions, I think, it is necessary at this stage to examine the legal elements necessary to constitute a valid Will and the formalities required for the same. Section 63 of the Indian Succession Act provides as follows:

“63. Every testator, not being a soldier…….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.

(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 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 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.”

6. We will now proceed to examine the evidence on record to determine if the present Will satisfies the above requirements. The scribe of the Will (P.W 1) has stated:

“Annapurna told me to scribe her Will in such a manner that her brother, Lakhman Murty Raju would get all her properties, moveable and immovable……. I wrote the will as desired by Annapurna. I read out the Will to her in presence of the witnesses. She accepted the writing. She was illiterate. So she executed the Will through my pen. Her execution was in the presence of witnesses who thereafter signed in the presence of the executant, Annapurna. She executed the Will in full sense knowing the contents of the Will. This is that Will, marked Ex. E”.

From this, it is clear that Annapurna was in full possession of her senses and was fully aware of the contents of the Will. The scribe signed it in her presence and by her direction and the witnesses attested the same.

7. Magta Kanei (P.W 2), an attesting witness to the Will, has stated that he and other Bhadralogs were called to the house where Annapurna was living:

“There Annapurna told us that she wanted to execute a Will in favour of her brother Lakhman Murty in respect of all her properties…… She asked P.W 1 to write the Will. She was illiterate. She signed through the pen of the scribe. Myself, Hadi Sahu, Guna Sahu, Kanhei Chinta and Dinabandhu Sahu (P.W 3) were witnesses to the Will. Annapurna executed the Will in presence of us, the witnesses and we witnesses also signed the Will in presence of Annapurna. I identified Annapurna before the Sub-Registrar. Annapurna was in full possession of her senses.”

8. The evidence of P.W 3, another attesting witness is also to the very same effect. He stated:

“I was present when she executed the Will (Ext. 1). She had asked P.W 1 to write the Will, it was present at the time. The Will was read over to her. She executed the Will through the pen of the scribe in my presence and in the presence of other witnesses. We witnesses also signed the Will in her presence. The Will was registered by the Sub-Registrar. I was present at the time. When Annapurna executed, she was in full possession of her senses”.

The evidence of P.Ws 2 and 3 fully corroborates the evidence of P.W 1 that Annapurna was in full possession of her senses; that it was she who directed P.W 1 to write out the Will; that she executed it through the pen of the scribe in the presence of the witnesses; and that the witnesses also signed it in her Presence. Therefore, it is clear that the legal requirements to constitute a valid Will are fully complied with in this case, as appears from the evidence of the scribe (P.W 1) as also the attesting witnesses (P.W 2 and P.W 3).

9. Mr. Sinha contended that there was no valid execution of the Will since the testatrix did not affix her mark to the Will nor was there any evidence to show that it was signed by the scribe (P.W 1) by her direction as required under sub-section (a) of Section 63 of the Indian Succession Act.

10. P.W 1 has stated clearly that the testatrix being illiterate she executed the Will through his pen. This statement is also supported by file evidence of P.Ws 2 and 3. According to Mr. Sinha, P.W 1 should have affirmatively stated that he signed the Will for her by her direction but to my mind this contention is based upon some misconception. Merely because the witness has not stated such in so many words that he signed the Will by her direction is not enough to undervalue his evidence.

11. Various other attending circumstances have to be looked into and the evidence has to be read as a whole. The fact that the Will was written in her presence and according to her directions, it was signed by the scribe and the attesting witnesses; and it was registered by the sub-registrar practically in one sitting and without any interval of time, has also to be taken into consideration. The mere non-mention of the words by P.W 1 that he signed by her direction is not material in the circumstances of this case.

12. The evidence of P.Ws 2 and 3 makes it quite clear that the executant signed through the pen of P.W 1 in their presence and each of them attested it in the presence of the testatrix. Coupled with this, it may also be noticed that she admitted the execution of the document in the presence of the sub-registrar.

13. The learned Additional District Judge who had the opportunity of hearing the witnesses and recording their evidence held in his judgment:

“The very words that the testatrix executed the document through the pen of the scribe do show that the scribe executed it on behalf of and at the instance of the testatrix.”

It is, therefore, clear that the legal requirements as laid down in Sec. 63(a) have been fully complied with in so far as the execution of the Will by the testatrix is concerned.

14. It was contended by Mr. Sinha that the signature of the scribe has not been affixed at the proper place of the document, as required under sub-section (b) of Sec. 63. On a perusal of the document itself, it appears that the signature of the scribe who signed on behalf of the executant is affixed at the place where exactly the testatrix is supposed to have placed her signature or mark in token of the execution of the Will, that is, at the end of the document. There is, therefore, not much force in this contention.

15. The other contention raised is that the document was not validly attested as there is nothing to show that the witnesses signed the Will as attesting witnesses as they have not stated so in so many words before the Court nor is there anything in the document that they signed the Will as attesting witnesses. But this argument is fallacious. The witnesses, as appears from the document, have given their signatures below the note “Kotini Annapurna Debi-Nishamani witnessed by”. They therefore have signed the document as attesting witnesses and in no other capacity.

16. In support of the contention that the attesting witnesses must sign the Will as such, Mr. Sinha relied upon the authority of a case in Sarkar Barnard and Co. v. Alak Manjari Kueri, AIR 1925 P.C 89. That was a case of mortgage deed and their Lordships have held that where a person puts his signature to a mortgage deed not in his capacity as a witness but only as signifying his approval of the transaction is not an attesting witness. It is with the background that their Lordships have held that the witnesses must see execution and must subscribe as witnesses.

17. On this point, another case in Chandratan Gandhi v. Sm. Jamuna Bai, AIR 1946 Cal 168, was cited before us. The facts of that case are entirely different. There, the witness did nothing more than explaining the Will to the testator and put his signature on the last page of the Will with an endorsement; “Explained by me to ‘G’ who is a person known to me”. Their Lordships held that as Madan did not put his signature on the Will animo attestandi, he could not be treated as an attesting witness. The facts of these two cases are entirely different and the decisions given therein have no bearing to the present case and are easily distinguishable. We therefore hold that the document has been duly attested.

18. In this connection, a decision in Naresh Chandra v. Paresh Charan Das Gupta, (S) AIR 1955 S.C 363 may be noticed where their Lordships have said:

“It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the Will in the presence of the testator, there was no due attestation, lit will depend on the circumstances elicited in I evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence.”

19. Mr. Sinha further argued that in the absence of evidence by the scribe that he executed the Will by the direction of the testatrix, there was no valid execution and, in case the thumb impression of the executant given before the Sub-registrar is taken as an admission of the execution of the Will, such admission before the Sub-Registrar has been made only for the purpose of registration of the document u/sections 58 and 59 of the Registration Act and cannot be used to prove the execution of a document, and, at any rate, the Sub-Registrar cannot in such a case be taken to be an attesting witness in case the other identifying witness, (P.W 2) is also taken as an attesting witness.

20. In support of his contention he referred to some decisions including one of our High Court in Mayurbhanj State Bank v. Bhabatosh Das F.A No. 1 of 1957, D/- 17-11-60: (AIR 1961 Orissa 178). In that case, their Lordships have held: (a) that there was not an iota of evidence on record to show that the document was read over and explained to the lady executant and, on the other hand, the defendant stated that there was no necessity to explain the document to her; (b) that the document was scribed in English and the executant did not know anything else of English except how to sign her name; (c) that there did not appear to be any evidence that the document was attested by the witnesses as P.W 2, the attesting witness did not make any reference to the other attesting witness (D.W 6); and (d) that the Sub-Registrar did not prove the attestation in accordance with law as he did not say that he signed the document in the presence of the executant.

21. So, clearly enough the facts of that case are entirely different from the facts of the present case. In that case, the executant was not aware of the contents of the document nor was it attested by the attesting witnesses in accordance with law. Moreover, their Lordships have not decided that the Sub-Registrar was absolutely incompetent to be an attesting witness but, on the other hand, held that under the circumstances, evidence was lacking to make him an attesting witness on the ground that he did not say that he signed in the presence of the executant though he was examined as P.W 1 in that case. But in view of Our finding that the document was duly attested by P.Ws 2 and 3, the question whether the Sub-Registrar is legally competent to be an attesting witness in the present case does not arise for consideration.

22. In support of his second contention that the testatrix was not in a sound disposing state of mind, he drew our attention, particularly to the evidence of D, W. 2, a medical practitioner of Baluguan and D.W 3, a Kaviraj who are said to have tendered treatment to Annapurna during the time of her illness prior to the execution of the Will and also the evidence of D.W 4 in this connection. So far as D.W 2 is concerned, he stated that he treated Annapurna for about a week sometime in the middle of September when she was suffering from nervous disease and was unconscious.

23. He admitted that he used to maintain a register, from which, it could be known on what date he took up the treatment of Annapurna or if at all treated her. But that Register which would have been the best evidence to show whether or not he treated her, what was the disease and the duration of his treatment etc. was not produced in Court. D.W 3, on the other hand, stated that he also treated the testatrix for a Period of 15 days some time in the month Aswin. She was not unconscious during the time of his treatment and could not talk freely because of partial paralysis.

24. He admitted that he used to maintain a register of patients, but that register was also not produced in court. His further evidence was that he was told that the Doctor of Baluguan had already treated her. From this, it appears that he treated Annapurna after she was treated by D.W 2 and, by the time of his treatment, she probably had recovered as he found her talking, though not freely and she had her full senses. In view of this evidence, the evidence of D.W 2 falls to the background.

25. In this connection the evidence of D.W 4 may also be seen who stated that Annapurna was talking though falteringly when he saw her and she was quite conscious all the while. So, the evidence of these three witnesses would clearly show that even assuming that the testatrix was suffering from partial paralysis for sometime she had her full senses and was able to talk. The evidence on record, therefore, does not support the contention of the learned counsel that the testatrix was unconscious and was unable to understand things or in a position to express herself properly by reason of her serious illness.

26. Coupled with this evidence, we have already seen the evidence of P.Ws 1, 2 and 3 who have categorically stated that she was absolutely in full possession of her senses and, it was practically at her instance, the whole document was written out and executed. The Sub-Registrar's endorsement which is an elaborate statement made by the testatrix (Ex. 8) fully supports the theory that she was in full possession of her senses and she understood the contents of the document.

27. The statement made before the Sub-Registrar clearly proves also that she was not only fully aware of the contents of the document but also executed St. There is, therefore, not much force in this contention. We, therefore, hold that she was in a healthy and disposing state of mind and that the entire transaction took place at her instance. The question of any independent advice does not arise at all.

28. In this connection, Mr. Sinha cited a decision Sadhabi Devi v. Parmananda Misra, 4 Cut. LT 6 which has been relied upon in a later case Bhikariram v. S.H Mohd. Sahaji, ILR 1958 Cut. 67 : (AIR 1958 Orissa 62), where it was held by their Lordships that the party who wants to take advantage of a document executed by a purdanashin lady is to establish affirmatively: (i) that the document was explained to and really understood by her, and (ii) that she had independent advice or else that she had so much business capacity and strength of will as to dispense with the necessity of independent advice. I do not think, that proposition of law has any application to the facts of the present case. In that case, neither tile scribe nor the identifier of the document was examined as a witness as in the present case. The testatrix had merely given answers to some question of the Sub-Registrar. The facts of the case are wholly different from the present case.

29. Mr. Misra, the learned counsel for the respondent contended that as the entire transaction Hook place in one sitting, the entire evidence has to be read in that aspect. He urged that the evidence of P.Ws 1, 2 and 3 fully proves the execution and attestation of the document and, in the alternative, argued that in case it be found that the document was not properly executed, the admission of execution by the testatrix and her giving the thumb impression before the Sub-Registrar may be taken as valid execution in law. The Sub-Registrar and P.W 2 who was also the identifying witness before him, may be taken as attesting witnesses to the execution of the Will as will appear from the evidence and circumstances of the case.

30. In support of his contention that a Sub-Registrar can also act as an attesting witness is documents, Mr. Misra relied on a Full Bench decision of Veerappa Chettiar v. Subrahmanya, AIR 1929 Mad. 1. In that case, one of the questions Shat was referred to the Full Bench was:

“Whether the signature of the Registering Officer and of the identifying witnesses affixed to the registration endorsement u/ss. 58 and 59 of the Indian Registration Act amounted to sufficient attestation within the meaning of Section 59 of the Transfer of Property Act.”

Their Lordships in giving their opinion held that the signature of the Registration Officer and of the identifying witnesses affixed to the registration endorsement are sufficient attestation within the meaning of the Transfer of Property Act and its subsequent amending Acts.

31. A decision to the same effect was also cited by Mr. Misra which is reported in Sarada Prasad Tej v. Triguna Charan Ray*, AIR 1922 Pat 402. In that case, the testatrix made her mark through the pen of the scribe and there was only one attesting witness other than the scribe. Their Lordships held that the attestation made by the Sub-Registrar in token of the admission of execution of the Will A by the testatrix is a sufficient attestation for the purpose of law. But that question does not arise in the present case, as stated above.

32. In view of the discussions made above, we hold that the Will (Ex. 1) is a genuine document and it has been duly executed and attested in accordance with law.

33. The order passed by the learned additional District Judge is, therefore, confirmed and the appeal is dismissed with costs.

34. Narasimham, C.J:— I agree that the appeal should be dismissed with costs, but wish to add a few words on the question of due execution and attestation of the 1 Will, in view of the persistent argument of Mr. R.N Sinha for the respondent relying on a recent Division Bench decision of this Court in First Appeal No. 1 of 1957 D/- 17-11-1960: (AIR 1961 Orissa 178).

35. The facts are quite clear. The testatrix Annapurna Dei executed the Will at the house of her brother at Konaipur in Sompetra P.S (now Andhra State) on the 13th October 1952. The Sub-Registrar was specially sent for and he came to the house. The Will was scribed by P.W 1 Durga Mahanti Dasanna who stated that he wrote the Will as desired by her, read it over to her in the presence of witnesses, that she accepted the writing and then she, being an illiterate woman, executed the Will through his pen in the presence of witnesses who also signed the Will.

36. The two attesting witnesses, namely, P.W 2 Mageta Kanei and P.W 3 Dinabandhu Sahu supported the scribe by saying that he (the scribe) wrote it as desired by her that she signed the Will through the pen of the scribe and then they and other attesting witnesses also signed the Will in her presence. There is, however, a slight discrepancy between the evidence of P.Ws 2 and 3 and that of P.W 1 about the exact time when the Sub-Registrar arrived at the house of the brother of the testatrix.

37. According to the scribe, P.W 1 the Will was scribed at about 8 a.m and the Sub-Registrar came at about 9-30 a.m after the Will had been scribed. But P.Ws 2 and 3 stated that the Sub-Registrar had arrived at the spot before the execution of the Will, and that it was executed by the testatrix through the pen of P.W 1 after his arrival. P.W 2 further clarified it by saving in cross-examination, that the attesting witnesses signed the Will in the presence of the Sub-Registrar, that the execution of the Will by the testatrix through the pen of the scribe also took place in the presence, and that it was the Sub-Registrar who was telling the persons, present there, that a good number of persons should attest the Will.

38. He further stated that the Sub-Registrar then took the thumb impression of Annapurna on the Will and completed the registration. The slight discrepancy between the evidence of P.Ws 2 and 3 about the exact time of arrival of the Sub-Registrar should not be made much of in view of the fact that the witnesses were deposing four years after the incident. A fair inference from the evidence of P.Ws 1, 2 and 3 would therefore be that though the scribing of the Will commenced before the arrival of the Sub-Registrar, he had reached the house of the testatrix before it was completed, and that as the testatrix was illiterate the scribe, as authorised by her, executed it on her behalf through his pen. The attesting witnesses also signed the Will in her presence and then the Sub-Registrar took her thumb impression and completed the registration also in her presence. The whole thing took place in one sitting when all the necessary parties, namely the executrix, the scribe, the attesting witnesses and the Sub-Registrar were present at the house.

39. The legal requirement of a valid attestation of a Will is given in Section 63 of the Indian Succession Act which has been quoted by my learned brother. If the testatrix is illiterate it must be established, as a fact

(i) that it was signed by some other person in her presence and by her direction:

(ii) that the signing on her behalf by some other person took place in her presence and in the Presence of the attesting witnesses who had seen her directing that person to sign on her behalf, or had received a personal acknowledgment of the signature from her: and

(iii) that each of the attesting witnesses signed in the presence of the testatrix.

But this does not mean that unless the scribe and the attesting witnesses repeat in evidence the very words found in section 63 of the Succession Act, there is no due execution or attestation. The question ultimately is a question of fact which depends on a fair inference from the entire evidence adduced.

40. Thus, as pointed out by their Lordships of the Supreme Court in (S) AIR 1955 SC 363 (367) where execution and attestation took place in one sitting and all the parties were present until the execution and attestation were completed from the mere fact that the attesting witnesses did not expressly state during their examination in chief that they signed the Will in the presence of the testator it cannot be held as a proposition of law, that there was no valid attestation. It will depend on the circumstances elicited in evidence as to whether it can be reasonably inferred that the attesting witnesses signed in the presence of the testator.

41. The aforesaid observations apply with full force in the present case where execution, attestation, and registration were all done in one continuous sitting and the Sub-Registrar went out of his way to ask the attesting witnesses to attest the Will. It is true that neither the scribe nor any of the attesting witnesses says expressly that the testatrix directed the scribe to sign on her behalf but this follows as a necessary inference from their evidence to the effect that after the Will was written out and read over to her she executed the same “through the pen of the scribe”. The words “through the pen of the scribe” were put by the learned Additional District Judge and they are merely his translation of what the witnesses stated.

42. In the context they necessarily connote the idea that the scribe signed under the direction; of the testatrix. Similarly, though the attesting witnesses (P.Ws 2 and 3) have not expressly stated that they signed the Will as attesting witnesses and such an endorsement is wanting in the Will, such an inference follows by necessary implication. The Sub-Registrar asked them to attest the Will. They signed it as witnesses in the presence of the testatrix the entire Will having been scribed in their presence. I think it necessarily follows that they signed the Will as attesting witnesses. The necessary animo attestandi must be held to have been present in the circumstances mentioned above. Hence Mr. Sinha's reliance on AIR 1925 PC 89 and AIR 1946 Cal 168, will not avail.

43. Similarly, in the circumstances mentioned above it must also be held that the Sub-Registrar was also an attesting witness, even though he has not expressly stated, while signing the document, that he signed it in the presence of the testatrix. If P.W 2 is to be believed he took a fairly prominent part in asking the attesting witnesses to attest the Will, that he was present when the Will was being scribed, that it was in his presence it was read over to the testatrix, and that the scribe signed on her behalf. With a view to satisfy himself that she understood the contents of the Will, he took the precaution of taking her statement in writing (Ex. 8) which clearly shows that she knew fully the import of the transaction which she was entering into. Then he completed the registration after taking her thumb impression and left the place.

44. Mr. Sinha relied very much on the observation of the Privy Council in Surendra Bahadur Singh v. Behari Singh, AIR 1939 PC 117 cited in the Division Bench decision of this Court in F.A No. 1 of 1957, D/- 17-11-1960: AIR 1961 Orissa 178. There it was held that the signing by the Sub-Registrar and the identifying witnesses, on a document for the purpose of sections 58 and 59 of the Registration Act will not, by itself, show that they are also attesting witnesses to the document. But their Lordships of the Privy Council took care to point out that in that case there was no finding of fact as to what occurred at the time of the registration.

45. They distinguished the Full Bench decision of the Madras High Court reported in AIR 1929 Mad 1 where it was held—on the facts found in that case—that the Sub-Registrar and the identifying witnesses were also attesting witnesses to the document. It cannot be laid down, as a proposition of law, that unless the Sub-Registrar expressly makes an endorsement to the effect that after the signature or thumb impression of the executant was taken on the document he signed the document in her presence, he cannot be considered to be an attesting witness to that document.

46. That will depend on the facts of each case and the actual language used in the evidence of the witnesses or in the endorsement found on the document, though it may have a material bearing on this question, cannot be said to be conclusive, as pointed out in the Supreme Court decision mentioned above. It will depend on a fair inference drawn from all the proved facts and circumstances attending the execution and registration of the document.

47. In the instant case, as in AIR 1929 Mad 1 (FB), it must be held that the Sub-Registrar also signed the document in the presence of the testatrix and that consequently the endorsements made by her and the identifying witnesses, though meant primarily for the purpose of complying with sections 58 and 59 of the Registration Act, may also be held to have proved due attestation of the Will. The Division Bench decision of this Court in First Appeal No. 1 of 1957: (AIR 1901 Orissa 178

48. Moreover, in that case the principle emphasised by the Supreme Court in (S) AIR 1955 SC 363 (367), was not noticed.

GE/B.

49. Appeal dismissed.