1. This is an appeal by Shrimati Umrao, widow of Balabux, and Shrimati Naraini, daughter of Badri Narain alias Badri Bux, against the order of the District Judge, Jaipur City, granting Probate of a will said to have been executed by one Ramchandra to Baxi Gopal Bax.

2. The case put forward by Baxi Gopal BUX was that the deceased Ramchandra executed a will on the 9th of March, 1946, and registered it on the llth of April 1946. Ramchandra died in January 1947, and thereafter the present application was made by Baxi Gopal Bux who was the executor of the will for Probate.

3. The application was opposed by the appellants. It was denied by them that any will had been executed by Ramchandra. In the alternative it was said Ramchandra was a very old man and had not a disposing state of mind and had been ill for a long time before his death, and his mental condition was not sound. In effect the appellants put the respondent Buxi Gopal Bux to the proof of the will.

4. Two issues were framed by the Court below on these pleadings, which are as follows :

1. Whether a will was executed by Ram Chandra on 9-3-46 ?

2. Whether Ramchandra was in a fit mental condition ?

Both the issues were tried together and the Court below came to the conclusion that the will in dispute had been executed by Ramchandra, and that he was in a fit state of mind to have made the will.

5. In the present appeal, the appellants contended before us that the will has not been proved as required by law, and that Ramchandra was not in a fit disposing state of mind when he executed the will.

6. We shall first take up the question whether the will has been duly proved. Section 63 of the Jaipur Succession Act No. XIX of 1943 provides how a will shall be executed. Clause (c) of that section, with which we are concerned, says that 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; & each of the witnesses shall sign the will in the 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.

7. It is contended on behalf of the appellants that the provisions of Clause (c) have not been proved to have been complied with in the execution of this will, and therefore due execution cannot be held to have been proved. The will has been signed by Ramchandra and scribed by Gajanand. The two attesting witnesses were Nathulal and Ram Gopal.

The respondent Produced Gajanand, Ramgopal and Nathulal, and we have to scrutinise the statements of these witnesses to see whether the conditions of Clause (c) of Section 63 have been complied with Gajanand stated that Ramchandra signed the will in his presence. He also stated that Ramchandra had brought a draft and had given it to him, and he faired it out on the directions of Ramchandra. Ramgopal said that he attested the will at the request of Ramchandra, but added that Ramchandra had not signed the will in his presence. He did not say that Ramchandra acknowledged his signature on the will before asking him to attest it.

8. The third witness Nathulal stated that Ramchandra got a will-written out by Gajanand in his presence, and identified his signature on the will Ex. 1. He also identified the signature of Ramgopal on the will. He did not say however that Ramchandra signed in his presence or acknowledged before him that he had signed the will. All that he said was that at the time of the writing and execution of the will Gajanand, Ramchandra, Baxi Gopal Bux and he himself were present, and that Ramgopal came a little afterwards.

9. Besides the statements of these witnesses, we have the statement of Shri Madanmohan Chatterjee, who was the registering officer. He stated that the will was presented by Ramchandra. It was read over to him and he admitted its execution, and added that he had signed it after fully understanding it. The executant was identified by two witnesses, namely Eamgopal and Laxman Singh, and thereafter the will was registered. In cross-examination he said that he did not know the executant himself, nor did he know the two persons who had identified the executant.

10. There is no doubt that the two attesting witnesses for the respondent have not stated what they should have stated in order to prove that the will was executed in the manner provided by Clause (c) of Section 63. Learned counsel for the respondent, however, relies on certain authorities, and submits that the defect in the statements of the two attesting witnesses, namely Ramgopal and Nathulal has been made good by the evidence of the Scibe Gajanand and the Registering Officer Shri Chatterjee.

11. In Hurro Sundari Dabia v. Chunder Kant Bhuttacharjee, I L R 6 Cal 17 (A), the attestation of the will by the two witnesses was considered useless as these witnesses had signed the will before the testatrix had herself signed it. But the learned Judges held that when the will was presented for registration, the testatrix admitted before the Registrar her execution of the will in the presence of one of the two witnesses.

This admission was attested by the Registrar, and by the identifying witnesses. The learned Judges held that if these persons signed their names in the presence of the testatrix as attesting her own admission that she had signed the will, that would be sufficient attestation to satisfy the requirements of the law. The case was there-upon remanded to take evidence on this Point. Thus the view taken in this case was that even though the witnesses who signed as attesting witnesses do not prove the attestation in the manner provided by law, the will can still be proved if two witnesses are available who fulfil the requirements of the law as to attestation. We accept this.

12. The same view was taken in Amarendra Nath v. Kashi Nath, I L R 27 Cal 169 (B), and it was held that the certificate of admission of execution testified by the signatures of the Sub-Registrar and of a witness is sufficient attestation to satisfy the requirements of law.

13. Lastly learned counsel for the respondent relied on the observations of Curgenven J., in Ganshyamdas Narayandoss v. Gulab Bi Bai, AIR 1927 Mad 1054 (C), at page 1056 to the following effect:

"A personal acknowledgment of execution need not necessarily, I think, be restricted to an express statement to that effect, but may include words or conduct, or both, on the part of the testator which may be construed unequivocally as such, an acknowledgment."

We respectfully accept this also.

14. In the present case, we have, in the first place, the statement of Gajanand to the effect that he wrote out the will which bears his signature ostensibly as a scribe. But that signa-ture may also be treated as an attestation for it comes after the signature of the executant. He has however not definitely stated that he signed in the presence of the executant. His statement therefore proves only part of Clause (c), of Section 63, namely that the testator signe in his presence and not that he signed the presence of the testator. It cannot necessarily be presumed from the fact that his signature appeared at the end of the document that he must have signed in the presence of the testator.

15. As for the two attesting witnesses, the statement of Ramgopal is that he signed the will on being asked by Ramchandra to do so. The question is whether this conduct is sufficient to bring the matter within Clause (c) of Section 63 as an acknowledgment. We are of opinion that this is not sufficient. All that Ramgopal says is that he signed the document in the presence of Ramchandra. He, however, does not say that Ramchandra said to him that it was his will which he should witness.

One may assume acknowledgment of signa ture from conduct provided it is clear beyond doubt. In Ganshamdoss's case (C), a third person requested the attesting witness to attest the will in the presence of the testatrix saying that it was her will. The testatrix did not deny this, but, on the other hand, asked the witness to sign it. In those circumstances, it was held that this conduct was sufficient. In the present case, however, Ramgopal's statement is not that Ramchandra told him that this was his will, and he should attest it.

If Ramchandra had said that, it might not have been necessary for him to say in so many words that the will bore his signature. The statement, therefore, of Ramgopal also proves only one part of Clause (c) of Section 63, namely that the witness signed in the presence of the testator, but not that the testator signed in the Presence of the witness or acknowledged his signature.

16. As for Nathulal, he said that the will Ex. 1 had been written out on the directions of Ramchandra. He also said that he recognised the signatures of Ramchandra on it and his own signatures. He further said that he, Gajanand and Ramchandra were present when the will was written out and executed.

Taking all these circumstances together one may presume that in the case of Nathulal the signature of Ramchandra was made in his presence, and Nathulal signed in the presence of Ramchandra. This gives us only one witness whose evidence may be said to prove that Clause (c) of Section 63 was complied with.

17. Then comes the statement of the Sub-Registrar. His evidence is only sufficient to prove that the testator acknowledged his signature on the will. There is, however, nothing to show that the Sub-Registrar signed on the will in the presence of the testator. The endorsement on the will by the Sub-Registrar says that the will was presented on the 9th of March, 1946. Then follows the statement that Ram Chandra admitted the execution. Lastly there is the endorsement to the effect that it was registered in such and such book and at such page.

This endorsement is dated llth April 1946. It is, however, not clear from the statement of the registering officer whether Ramchandra came a second time on the llth of April, 1946, to get the will registered. It may be that Ramchandra came only on the 9th and admitted the execution of the will, and the registering officer put down his endorsement on the llth of April. The evidence, therefore, of the Registrar also does not comply with the provisions of Clause (c) of Section 63.

There is thus only one witness Nathulal who can, at the best, be said to have seen the testator sign the will and to have it himself in the presence of the said testator. In these circumstances, there is, in our opinion, no proof that the will was executed in the manner provided by Clause (c) of Section 63. The application for probate must fail on the ground of want of proof of execution of the will according to law.

18. We may also here consider the other point, namely that Ramchandra had no disposing state of mind, though that point does not arise after our decision as to the proof of the execution of the will. The evidence of these witnesses and two others is that Ramchandra was quite healthy at the time when the will is said to have been written out and executed. On the other side, general evidence has been produced that Ramchandra was not in his proper senses for a long time after the death of his wife and daughter.

The evidence is that he used to talk at random (Behki Behki Bate Karta Tha). But there is nothing to show that he was not in a fit state of mind to make a will. The statement of the Registering officer in this connection is important. He has stated that Ramchandra told him that the will had been written out at his instance, and he had signed it alter fully understanding it. In this connection, our attention was drawn to Gaindilal v. Bhuramal 1953 Raj L W 387 (D).

In that case it was held that where the entire property was willed away to one person to the total exclusion of other rightful heirs, the Court should always consider whether, at the time when the will was executed, the testator had a sound disposing state of mind, and that the alleged will was the will of a free and capable testator, and that he understood and approved the contents of it.

It has been urged that in this case the entire property was given away by the testator to a distant relation, and nothing was left for the appellants, one of whom is a widow of his nephew, and the other the widow of his brother, It appears from the will, however, that the right of residence was given to these widows for their life-time. The property consisted of certain houses, and in the circumstances, it cannot be said that the testator did not make any provision for the widows of the family.

There is certainly one curious mistake in the will, namely that Shrimati Umrao is described as the widow of Badri Narain and Shrimati Sardari as the widow of Bala Bux. Actually Shrimati Umrao is the widow of Balabux, while Shrimati Sardari is the widow of Badrinarain. How Ramchandra came to make this mistake is not clear; but from this alone, it cannot be said that his mind must have been wandering and he could not be in a sound disposing state of mind.

On the whole, therefore, if we had held that the will was duly proved, we would have been disposed to hold that Ramchandra had a sound disposing state of mind at the time the will was said to have been executed.

19. We therefore, allow the appeal, setaside the judgment of the Court below, and' dis miss the application for probate. As we think that the failure to prove the will is due to the counsel, presumably not knowing what is to be proved under Section 63 of the Succession Act, we order parties to bear their own costs of these proceedings in both the Courts.