Makhan Mal L. Ram Ditta Mal And Others v. Mst. Pritam Devi And Others

Grover, J.:— The pedigree-table showing the relationship between the plaintiffs and Gurditta Mal deceased in respect of whose property the suit out of which the present appeal has arisen was filed is set out in the judgment of the Court below. Makhan Mal who was plaintiff No. 1 but who died later on during the pendency of the litigation was the brother of Gurditta Mal and the other plaintiffs are his sons. Gurditta Mal who owned considerable property, both movable and immovable, died issueless at the age of 92.

2. On 16th April, 1944 Gurditta Mal had made a gift in favour of the defendants by means of a deed, Exhibit D-25, which he got registered. On End August, 1944 he executed a will, Exhibit D-24, which also was got registered. The effect of the gift and the will was that certain properties were bequeathed to Pritam Devi widow of Beli Ram who was the brother of Gurditta Mal's wife and to the other defendants who are the sons of Beli Ram.

3. Gurditta Mal died on 19th August, 1947 and when the defendants entered into possession of the properties which had been bequeathed to them on the strength of the will, the suit out of which the appeal has arisen was instituted in 1951 for possession of the houses, shops, lands and movable property and for recovery of mesne profits as detailed in the plaint. The main pleas of the plaintiffs were that the property in dispute was joint Hindu family property as Gurditta Mal constituted a joint Hindu family with the plaintiffs and that he had no power to make a gift or testamentary disposition of these properties. The execution of the aforesaid documents was also challenged on the ground that Gurditta Mal was under the undue influence of the defendants and was not of sound disposing mind at the time when the documents were executed. The defendants controverted all these and other allegations of the plaintiffs. A very large number of issues were framed which are not necessary to be reproduced. On the principal points, namely, whether Gurditta Mal was a member of the joint Hindu family or was separate and whether the gift deed and the will had been validly executed, the findings of the trial Court were given in favour of the defendants.

4. It was found that the testator had bequeathed the properties in question to the defendants because they had rendered services to him and were related to him. He had further left house ‘Alif’ to the plaintiffs and made certain other bequests in favour of the plaintiffs as well. It was also held that the possession of the defendants over the house ‘Alif’ and the shops ‘Dal’ and ‘Rey’ was wrongful and for that reason a sum of Rs. 338/- was awarded by way of mesne profits. Finally the plaintiffs were granted a decree for possession of the house ‘Alif’, shops ‘Dal’ and ‘Rey’ and for Rs. 338/- on account of mesne profits in regard to these properties. The suit relating to the remaining properties and for other reliefs was dismissed.

5. The learned counsel for the plaintiff-appellants has first of all made a serious effort to challenge the execution of the will, Exhibit D-24, for the reason that the plaintiffs would be entitled to the decree with regard to the properties covered by the will if it is not proved to have been validly executed. The will was scribed by Muni Lal D.W 3 and purports to have been attested by Muni Lal P.W 3, Ragho Ram P.W 4 and Amar Singh who was examined on commission. It was registered by Gurbachan Singh D.W 2 who was the Sub-Registrar.

6. In the body of the will it is mentioned that it had been executed and completed in the presence of the marginal witnesses and the testator had thumb-marked it in the presence of those witnesses who had also signed in his presence and that the testator was blind and he had affixed the thumb-impression of his left hand. Muni Lal P.W 3 and Ragho Ram P.W 4 deposed that the will had not been executed by the testator in their presence nor did the testator acknowledge its execution or thumb-mark it in their presence.

7. It is apparent from what the learned Judge has said about these witnesses that they had been won over by the plaintiffs and were not telling the truth. Amar Singh, however, who was examined on commission clearly stated that he affixed his signatures on the will in the presence of the testator and the latter had acknowledged before him that he had executed and thumb-marked the will. The Sub-Registrar appeared as D.W 2 and stated that the will in question had been produced before him for registration on 2nd August, 1944 and its contents were read over to Gurditta Mal by him.

8. Gurditta Mal admitted the same to be correct and then affixed his thumb-impression on it. The endorsement, Exhibit D. 4, bore his signatures. It was written by his munshi under his supervision. He signed that endorsement in the presence of Gurditta Mal. The endorsements, Exhibits D-5 and D-6, were also signed by him. Gurditta Mal was personally known to him and he was in possession of his full senses when the will in question was produced before him for registration. He was also in disposing mind at that time.

9. The learned trial Judge considered that the aforesaid evidence together with the evidence given by the defendants, Baldev Sahai and Ram Sahai, was sufficient to prove that Gurditta Mal had duly executed the will and thumb-marked it. He also proceeded to treat the evidence given by the Sub-Registrar and the endorsements made by him one the will as sufficient coupled with the evidence of the other attesting witness, Amar Singh, to satisfy the requirements of Section 63 of the Indian Succession Act. It is this view in particular which has been assailed before us by the learned counsel for the appellants.

10. The proposition canvassed is that under Section 63 of the Indian Succession Act the will must be attested by two or more witnesses and that a Sub-Registrar while registering a will presented to him by the testator cannot be regarded to be an attesting witness. The view which found favour with a Bench of the Lahore High Court in Parshotam Ram v. Kesho Dass, AIR 1945 Lah 3, which was followed in this Court in Gian Chand v. Surrindar Kumar, 1951 Pun LR 251, is to the contrary.

11. It was laid down that where the will bore the signature of only one attesting witness when it was presented for registration, the signatures of the Sub-Registrar and of another person who were proved to have signed the will in the presence of the testator though as registering authority or an identifying witness after its execution had been admitted before them by the testator it must be regarded as sufficient compliance with Sec. 63. In the Bench decision of this Court the will was held not to have been duly executed because it was not proved as a question of fact that the Sub-Registrar or the identifying witness had made their signatures on the will in the presence of the executant of the will.

12. As a matter of fact, there the Sub-Registrar had not been produced as a witness and the endorsement by him was not regarded sufficient for the purpose of holding that he had signed the will in the presence of the testator but there can be no doubt about the rule which has been laid down by these two Bench decisions which must be followed unless a case is made out as indeed it has been sought to be done for referring this point to a larger Bench on the ground that the aforesaid decisions do not lay down the law correctly.

13. Our attention was invited to the view of the Bombay High Court as expressed in Harkisandas Dharamsey v. Dwarkadas Gordhandas, AIR 1936 Bom 94 and Timmayya Dundappa v. Channaya Appaya, AIR 1948 Bom 322. In the first case the question was whether the defendants had made out a marketable title to certain leasehold property, which by an agreement in writing the plaintiff agreed to purchase. The title began with a mortgage which was executed by one Omar Pir Mahomed, the then owner.

14. At the foot of the witness clause the mortgage was signed by him in the presence of one attesting witness only and the point taken was that by reason of that fact it was not a valid mortgage. Below that signature and attestation appeared receipt clause whereby the mortgagor on the same day on which he signed the document admitted the receipt of Rs. 20,000/- and that was witnessed by two persons, one of whom had previously attested the mortgagor's signature to the execution of the document.

15. On the same day certain endorsements were made in the office of the Sub-Registrar below which appeared the signature of one Sakarlal Jayantilal and below his signature was the signature of the Sub-Registrar of Bombay. It was contended that was sufficient attestation in accordance with Section 59 of the Transfer of Property Act. Blackwell, J. found that what took place on 21st December, 1901 before the Sub-Registrar was that although the mortgagor put his signature to the document admitting execution, there was no evidence that he admitted execution in the presence of Sakarlal Jayantilal whose signature merely indicated that he had signed the document as an identifying witness.

16. There was no evidence to prove whether the Sub-Registrar put his name on the document in the presence of the mortgagor or in the presence of the identifying witness or afterwards. It was on these facts that the learned Judge expressed the opinion that what took place before the registering officer had nothing to do with attestation. He referred to the conflict between the Full Benches of the Madras High Court in Veerappa Chettiar v. Subramania Ayyar, ILR 52 Mad 123 : (AIR 1929 Mad 1) and Allahabad High Court in Lachman Singh v. Surendra Bahadur Singh, ILR 54 All 1051 : (AIR 1932 All 527) (FB), and preferred to agree with the latter decision.

17. He, however, was affected in his conclusion by the consideration that it would not be proper to force that title upon an unwilling purchaser having regard to the conflict of opinion which existed between two Full Benches of different High Courts. In the second case, AIR 1948 Bom 322, a plea had been raised that a certain deed of gift which had been registered had not been properly executed. Under Section 123 of the Transfer of Property Act, such a deed, apart from being signed by the donor, must be attested by two witnesses and it must be registered.

18. The Bench referred to the provisions in Section 3 of the Transfer of Property Act and Sections 68 to 71 of the Evidence Act. The argument that had been raised was that it was not necessary for the plaintiff to have proved the attestation of the gift deed because when the document was presented before the Sub-Registrar for registration, the executant admitted that it had been executed by him and that admission was enough to enable him to claim the benefit of Section 70 of the Evidence Act.

19. It was only if a party had shown to have made an admission about the execution of the document in the proceedings where the document was produced that proof of the attestation could be dispensed with. Besides, the admission mentioned in S. 70 must be an admission about the due execution of the document which would include an admission as to its proper attestation. The statement made by the executant before the Sub-Registrar could not be regarded as an admission about its due attestation.

20. It had then been contended in the Bombay Court that the endorsement made by the Sub-Registrar and the signature made by him and the signatures of the identifying witnesses should be regarded as proof of attestation. This argument was not acceptable because prima facie before a document was presented for registration it must be completed as required by the provisions of the Transfer of Property Act. If what happened at the time of registration was regarded as affording attestation to the document, it might lead to the result that the document was presented for registration before it was completed.

21. The decision of the Madras Full Bench in ILR 52 Mad 123 : (AIR 1929 Mad 1) was distinguished on the ground that there the Sub-Registrar had given evidence to show that he had made his signature in the registration endorsement referring to the admission of execution by the executants of the document in the presence of the executants and it had also appeared in evidence that the witnesses who had identified the executants before the Sub-Registrar were present when the admission of execution of that document was made by the executants, and that both the identifying witnesses made their signatures in the presence of the executants. It was further observed by the learned Bombay Judges that in order that a signature of a person might be treated as that of an attesting witness, it must be shown that person signed the document intending to act as an attesting witness.

22. It is noteworthy that both the Bombay cases on which reliance has been placed did not relate to wills. The significance of this is emphasised in the Lahore judgment in AIR 1945 Lah 3 in which it is observed, and reference has been made to a passage in the judgment of the Allahabad Full Bench itself in ILR 54 All 1051 : (AIR 1932 All 527), that there is an exception in favour of wills as they are not required to be compulsorily registered and the rigidity with which non-testamentary instruments of alienation creating rights in the property were dealt with was relaxed in case of testamentary instruments. The passage from the Allahabad judgment may be reproduced with advantage:

“We are of opinion that the argument is fallacious and should not be accepted. A will is not required by law to be registered. Thus, it might be enough for the compliance of the rule of execution and attestation if the testator actually admits execution before the Sub-Registrar and the identifying witnesses. Like a mortgage deed a will need not be executed and attested first before it is presented for registration. Only two safeguards are needed for a will, namely, execution and attestation. If these are supplied at the registration, the requirements are fulfilled. The case of a will therefore is entirely different from a case of a mortgage and cannot be relied upon as a clear guide.”

23. Thus it is clear that even the Allahabad Court which holds a view which generally supports the contention canvassed on behalf of the appellants would have sustained the execution of a will if the testator actually admitted the execution of the will before the Sub-Registrar and the identifying witnesses. As a matter of fact, in an earlier Bench decision of the Theresa…Defendant v. Francis J. Misquita…Plaintiff ., AIR 1921 Bom 156), Fawcett, J. was clearly of the opinion that where a testator admitted execution of the will before a Sub-Registrar and affixed his thumb-impression, there was proper execution of the will, apart from the question whether there was such proper execution before.

24. That case related to a will and was apparently for that reason not considered in the other two Bombay decisions on which the learned counsel for the appellants has mainly relied. In the later decisions of the Bombay Court there was another feature of distinction, namely, that the Sub-Registrar had not given evidence on which the test of due and proper attestation could be held to have been satisfied. In the Commentary on the Law of Succession by N.D Basu (Fourth Edition) all the cases of different Courts on this point are set out at page 136 and it is unnecessary to refer to all of them.

25. We have not been persuaded either on principle or on authority that the previous Bench decisions of the Lahore Court and this Court were wrongly given and, therefore, it must be held that the learned trial Judge was justified in coming to the conclusion that the will. Exhibit D-24, had been duly attested by Amar Singh and the Sub-Registrar, Gurbachan Singh. A faint attempt was made to assail the veracity of Amar Singh who was attesting witness of the will but an examination of his evidence shows that he is a trustworthy and independent witness and his testimony must be accepted. There is yet another factor which was relied upon by the Court below for holding that the attestation of the will had been properly proved.

26. Muni Lal P.W 3 and Ragho Ram P.W 4 who were two other attesting witnesses had, as observed before, stated that they signed the will at their nouses. D.Ws 10 and 11, the defendants, appeared as their own witnesses and stated that the will was thumb-marked on every page in the presence of the attesting witnesses who attested the same in the presence of the testator. Their statements are supported by what is recited in the will itself with regard to the presence of the attesting witnesses and the testator having thumb-marked it in their presence and their having signed the will in the presence of the testator.

27. It is true that Amar Singh, the other attesting witness, stated that he did not remember about the presence of the other witnesses but it must be remembered that he made a statement on 7th October, 1950 whereas the will had been executed in the year 1944. It is quite possible that he forgot about the presence of the other attesting witnesses. Thus it would appear that Muni Lal and Ragho Ram were also attesting witnesses although they did not give truthful evidence in Court.

28. The requirements of S. 63, at any rate, stood satisfied the moment Amar Singh and the Sub-Registrar gave evidence. Their statements coupled with the fact that the testator lived for nearly three years after the execution of the will would be sufficient to repel the other contention that has been advanced on behalf of the appellants that the testator was under the undue influence of the respondents and was not of a sound disposing mind.

29. It is pointed out that he was almost blind and that the defendants had been living with him for a long time. These facts would not be sufficient to justify a finding of undue influence or lack a proper diapositive mind. Indeed, the argument of the learned counsel for the appellants on this-aspect of the matter was only half-hearted.

30. The next important matter decided by the Court below related to the question whether Gurditta Mal formed a joint Hindu family with the plaintiffs and whether the suit properties belonged to the joint Hindu family. The learned trial Judge held that the disruption had taken place long before 1944 and that Gurditta Mal did not form as joint Hindu family with the plaintiffs.

31. The entire evidence was examined with great care by the learned trial Judge and in order to come to that conclusion, the evidence which was examined by him consisted of the following: (His Lordship reviewed the evidence relied upon by the trial Judge and upheld the finding:)

32. In the result, the appeal fails and it is dismissed with costs.

33. Mehar Singh, J.:— I agree.

34. Appeal dismissed.