Onkar Pershad v. Jagdish Parshad, Etc.

Kapur, J.:— This is an appeal against an order passed by the learned District Judge, Karnal, Rohtak, sitting on the probate side refusing to grant Letters of Administration with the Will annexed for want of proper attestation as required by law.

2. The testator was one Jowala Pershad who made a Will on the 27th of July, 1943, in favour of his younger son Onkar Parshad. This Will was executed at Delhi and is marked Exbibit P. 1. The Will is scribed by Sham Lal P.W 1 and purports to have been attested by Jagdish Parshad P.W 2 and Dr. P.D Bhargo. Jowala Parshad died on the 21st of October, 1943 at the age of about 73. Before this Will was written there was a separation between the father and the sons and each one of them had received his share of the family property. The learned District Judge has found that the Will is not proved because the provisions of section 63 of the Indian Succession Act have not been complied with. In appeal Mr. Fakir Chand Mital has submitted that the Will must be taken to have been attested by Jagdish Parshad whose attestation has been held valid by the Court and by Sham Lal P.W 1, the scribe. I am unable to agree with Mr. Mital's submissions. In the first place the attestation of Jagdish Parshad P.W 2 does not appear to be in accordance with the provisions of section 63 of the Succession Act. In the evidence of Jagdish Parshad there is no suggestion that the Will was attested by him, in the presence of the testator, although be does state that the testator signed it in his presence.

3. The next attesting witness, who, according to Mr. Mital, is a witness within section 63 of the Succession Act, is Sham Lal P.W 1. He is the scribe of the Will. After the Will and before the signatures he has written as follows:—

“Dated 27th July, 1943, in the hand of Sham Lal deed writer at Delhi, deed No. 337. The subject-matter of the Will has been read out to the testator and has been understood by him.”

4. Below this writing there is the signature of Jowala Parshad and his thumb-mark and the attestations of Jagdish Parshad and P.D Bhargo. Sham Lal P.W 1 does purport to be an attesting witness. The law has been summed up on the question of attestation of Wills in the following words by Sen Gupta in his Indian Succession Act at p. 70:—

“In order to make valid attestation, the signature of the witnesses must have been affixed animo attestandi. In other words, they must subscribe the will as witnesses and not in any other character. * * *.

Where a will was written and signed by the testator and subscribed by one witness and, on the next page an inventory was written to which three names were subscribed, these names were held to be not placed animo attestandi. * * *. Attestation presupposes signature and the attesting witness must have placed his signature after be has seen the testator sign as evidence of such execution.”

5. In the present case the scribe Sham Lal P.W 1 does not purport to be an attesting witness. He is nothing more than a scribe and the case seems to fall within the rule laid down by their Lordships of the Privy Council in Thakur Shiam Sundar Singh v. Thakur Jagannath Singh . 32 C.W.N 305. where the sons of the testator signed the will to signify their assent but not to attest the will. This was held merely an act of expressing consent to the beq rest made therein and not as attesting witnesses of the will as required by the Indian Succession Act. In a Patna case, Bulaki Mahten v. Mst. Dulia . A.I.R 1941 Pat. 368., the signatures of a scribe who merely said that he had read over the contents of the document to the executant and did not purport to be an attestation as a witness of the Will was held not to be sufficient attestation as required by law.

6. In an English case in The goods of Wilson3, it was held that a testamentary paper is not entitled to probate, unless the Court is satisfied that the names of the alleged witnesses were subscribed on it for the purpose of attesting the testator's signature. Sir J.P Wilde, who delivered the judgment observed:—

“The 9th section of the Statute of Wills prescribes how a testator is to execute a Will, and that the witnesses shall attest and subscribe the Will in the presence of the testator. Now, from this it is plain that in order to make a good execution the witnesses must have attested and subscribed the Will. They must attest the signature of the testator to the Will. It is said that the position of the names of the witnesses is immaterial, provided they are in such a position as to show that they were placed there for the purpose of attesting the Will. In considering whether persons have subscribed a Will as attesting witnesses the position of the signatures may be most material. If they are written under an attestation clause no difficulty arises, but if they are placed elsewhere their position may be important, because if they are placed under a particular clause or statement the inference is that prima facie they were put there to give effect or to testify to the Words of the clause or statement.”

7. There the signatures of the alleged attesting witnesses which were on the next page were held not to be for the purpose of attestation because of their position.

8. The learned Advocate for the appellant has relied on a judgment of the Lahore High Court in Parshotam Ram v. Kesho Das . A.I.R 1945 Lah. 3., where the attestation of a Sub-Registrar and of the person who identified the testator before the Registrar were held to be sufficient attestation. It is not necessary for me to decide that question here, because I find that a Division Bench of this Court has, in another case, agreed with this view. The question in the present case is whether Sham Lal has purported to act as an attesting witness. After going through the evidence and looking at the place where Sham Lal has put his signatures, I am satisfied that he was not acting as an attesting witness.

9. I have held already that Jagdish Parshad's evidence does not satisfy the requirements of section 63 of the Indian Succession Act. Besides there is a great deal of contradiction between the witnesses as to the time and place of execution of the Will. Personally I am very doubtful as to the execution of the Will itself, and it is not necessary for me to go into this matter. I am therefore of the opinion that this appeal is without any force and must be dismissed. The respondent will have his costs here and in the Court below.

10. Appeal dismissed.