Stone, C.J:—

This is an appeal from the judgment of Mr. Justice Kania dated December 7, 1944. The appeal raises a short though interesting question with regard to the proof necessary to establish due execution of a will on a petition for probate which is contested.

The deceased in this case was Dr. H.M Mody, who died on October 21, 1942. He had married his second wife Manoramabai in September, 1942, and on October 6, 1942, he executed a testamentary document in her favour which purports to be attested by a solicitor and his clerk. On October 15, 1942, it is alleged that he executed a second testamentary document and this purports to be attested by Mr. Somne and one Choudhari Mohammed Mustaqueem Khan. This document of October 15 is the one in respect of which the petitioner asks for probate, and except for the signatures, it is typewritten on a sheet of the Doctor's note paper and is in the following terms:—

“Last Will

I hereby cancel all my wills and bequeath all my estate to Mrs. Roda Framroze Mody whom I direct to pay 1/10th of the estate to Petit Memorial Library, and spend a sum of Rupees One thousand towards my funeral and other ceremonies, and utilise a sum of Rupees one hundred annually towards anniversary ceremony of my wife Urmila”.

Then in typescript is “1. Witness” and under that “2. Witness” and in ink the signature which purports to be that of Dr. Mody and under the “1. Witness” the signature in ink of Mr. Somne and then under the “2. Witness” the signature in Urdu which purports to be that of Chowdhari Mohammed Mustaqueem Khan. The document is dated October 15, 1942. If it is a valid testamentary disposition, the question of the validity of the previous will of October 6 would not arise. The parties went to trial on the sworn caveats in lieu of statements of defence and the caveat of Manoramabai contained the following statement:—

“I say that I have taken inspection of the will dated the 15th day of October 1942 alleged to have been executed by my late husband and filed in Court by the petitioner abovenamed. From such inspection, I deny that the signature on the said will is that of my husband. In this respect I have also compared the signature of my husband on his last will and testament dated the 6th day of October 1942 with the alleged signature on the alleged will dated the 15th day of October 1942 and I say that the signature on the alleged will dated the 15th day of October 1942 is not that of my husband. I have further found on such inspection that the said alleged will in attested by two witnesses, the first witness of whom is one Mr. Khanderao Bhagwant rao Somne who had, to my knowledge, never visited my husband during his lifetime. The signature of the second witness is in Urdu and from the office translation thereof it appears that the said signature is that of one Pathan who had also, to my knowledge never visited my husband during his lifetime. I, therefore, say that the said signature on the said alleged will dated the 15th day of October 1942 is not that of my husband and that it is a forgery”.

That is not an artistic form of pleading, but no objection was taken to proceeding to trial in this way.

Before referring to s. 63(c) of the Indian Succession Act and to s. 68 of the Indian Evidence Act, the observations of the Privy Council in Ramanandi Kuer v. Kalawati Kuer, which refers to the procedure to be adopted in revocation of a grant of probate, must be borne in mind. Those observations, in my opinion, equally apply in principle to the proof of a will in a contentious matter. Lord Sinha delivering the judgment of the Board said this (p. 231):—

‘There has been some divergence of opinion in the Courts in India as regard the law and procedure governing cases for revocation of probate, due in part to the introduction into Indian practice of the difference in English law between the grant of probate in common form and probate in solemn form. It is worse than unprofitable to consider how far, if at all, that distinction has been incorporated into Indian law. It has often been pointed out by this Board that where there is a positive enactment of the Indian legislature the proper course is to examine the language of that statute and to ascertain its proper meaning, uninfluenced by any consideration derived from the previous state of the law—or of the English law upon which it may be founded.’

The formalities to be observed in the execution of a will so far as material are contained in s. 63(c) of the Indian Succession Act of 1925. That sub-section is as follows:—

“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 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”.

Mr. Khambata in an able argument on behalf of the appellant refers the Court to s. 68 of the Indian Evidence Act which provides that:—

“If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence”.

And then there is a proviso which is not material.

The alleged signatures to the document of October 15, 1943, are, as I have already mentioned, three. Mr. Somne, one of the alleged attesting witnesses, alone was called and he states that he visited the deceased who was a doctor with reference to the repair of some medical syringes. He says:

“On 15th October 1942, I had been to Dr. Mody's consulting room at about 4 p.m I asked him if he wanted any syringes. He said that he did not want any. He was alone. Dr. Mody then took out a letter from his table. It was typewritten. He asked me to attest it. With his permission I read what was typed. I showed my unwillingness to attest the document and asked him to get the attestation of so me other person he knew. He told me that he wanted the attestation of a stranger and pressed me to sign it. When he showed me the paper it was already signed by him. He told me that he had signed it. I attested my signature and put the date below my signature. Below my signature ‘2. Witness' was typed. No one had written below that. Dr. Mody told me that he would get the signature of some-one else afterwards”.

Then in cross-examination Mr. Somne said this:

“On no occasion whatsoever I bad talk with him about his relations, friends, or family affairs. I did not know if he was married. I do not claim friendship with him…. I do not put my signature, even as an attesting witness, without reading the document. I do not remember if, except the insurance proposal forms, I have ever attested any document in my life. I did not ask who Mrs. Roda Framroze Mody was. I did not know her. After I read the document I attested it. I had no conversation at all with the doctor thereafter”.

Therefore, if Somne's evidence is accepted, he proves that the deceased acknowledged his own signature to him and that he himself signed as a witness. He cannot say, because he was not present, anything about the acknowledgment of the document to the second witness. Referring to this evidence the learned trial Judge said this:

“If necessary, I am not prepared to act on the oral evidence of that witness (meaning Mr. Somne). In my opinion, the Court's conscience cannot be considered satisfied on that evidence about the due execution of Ex. A as the last will and testament of the deceased. The petition thus fails and is dismissed with costs”.

The learned Judge does not say that he disbelieves the witness. He says he is not prepared in effect to act on that evidence alone; and he has dealt with the case on the question of law. What the learned Judge has said is this:

“Section 63(c) of the Indian Succession Act requires that the will should be attested by two or more witnesses, each of whom had either seen the testator sign or affix his mark, or had received from the testator a personal acknowledgment of hi signature or mark on the will. According to that sub-section it is not necessary for all the three, viz. the testator and the two witnesses, to be present at one and the same time, but, it is clear that the section requires that there must be two witnesses who have attested the execution, and to each of them the testator had either given his personal acknowledgment of his signature or who were present when the testator executed the document. In the present case, on the evidence, it is clear that even if it is accepted fully, the requirements of s. 63(c) of the Act were not fulfilled. There is no evidence that the alleged second witness was present when the testator executed the document, or had received from the testator a personal acknowledgment of his signature. Mr. Khambata urged that by reason of s. 68 of the Evidence Act it was sufficient to call only one witness. That argument mixes up the two questions. The Evidence Act lays down the mode of proof, it does not define what is required to be proved. That is stated in s. 63(c) of the Succession Act. If one witness, who is called, is in a position to depose to all that is required by s. 63(c) the law permits that to be done. But by section 68 of the Evidence Act the law does not alter what is required to be proved by s. 63(c) of the Succession Act. On that ground alone the petition must fail”.

I respectfully agree that the evidence which may be given by at least one witness is to prove execution of the will and that means, in my judgment, proving execution of the document according to the requirements of the statute. That Mr. Somne was unable to do in this case and the document has, therefore, not been proved to have been executed according to law. But Mr. Khambata submits that a presumption ought to be raised in his favour that the testator acknowledged the document to the second witness and he says that accordingly he proposed to call a Mr. Bhagat to show that the person to whom it is alleged that the deceased secondly acknowledged his signature had gone to Tulsipur. The following is a record of what happened immediately after the appellant had left the witness-box:—

“Khambata:—I want to call Mr. Bhagat to show that the deceased knew one Mahomedmiya who used to sit in the office of Bhagat and that at the instance of Dr. Mody Bhagat allowed him to sit in his (Bhagat's) office. Bhagat will further depose to the fact that Mahomedmiya had left for a place called Tulsipur and he gave that address to petitioner's husband. Khambata further wants to call petitioner's husband to show he made inquiries at the address given but is unable to trace that Mahomedmiya.

P.C This evidence is not useful at all. It does not establish that the man who is alleged to be the second witness was the Mahomedmiya, about whose whereabouts the inquiry was made. Mahmedmiya is a common name and there may be hundreds of persons of that name. There is nothing to connect the Mahomedmiya, sitting in Bhagat's office with the attesting witness, Khambata says that the name is Chowdhary Mahomed Mustakiakhan”.

The matter was not pressed further and Mr. Khambata closed his case.

In fact Mr. Khambata relies on certain reported decisions to support his proposition that it is only necessary to call one witness to prove one attestation and that once this has been done, either the will is proved or a presumption of the validity arises in his favour which shifts the onus to those who contest the will to show that it was not properly executed. The first case relied upon is Rammol Das Koch v. Kakol Koli Kochini. In that case Mr. Justice Fletcher, with whom Mr. Justice Chatterjea agreed, said this (p. 316):

“Under s. 68 or the Indian Evidence Act, it is quite clear that a Will can be proved by one of the attesting witnesses. The same view has obtained in England for many years. I quote from a most recent Text-book—Mortimer on Probate Practice, p. 302, where the learned author observes: ‘To prove the attestation of a will in the Court of Probate, it is not necessary to examine both the attesting witnesses.’ The learned Judge was clearly wrong when he rejected the will on the ground that only one of the attesting witnesses had proved the will”.

Now it nowhere appears from the facts of that case whether the single attesting witness who was called was able to give evidence as to the attestation of the other attesting witness, that is to say that both the attesting witnesses were present at the same time. It appears that this may well have been the case, since the learned Judge in the passage I have read, quotes a passage from Mortimer on Probate to the effect that in England one attesting witness can prove a will. But there is this material difference between the law of England and the law of India in this respect, viz. that in England it is by the Wills Act obligatory for both the attesting witnesses to be present at the same time in order to witness due execution of the will, whereas in India the testator may acknowledge his signature to the witnesses at different times and not in each other's presence. In my opinion, therefore, this Calcutta case is distinguishable and cannot be treated as an authority for the proposition that only one attestation need be proved.

The other cases are all with regard to the execution of mortgages. The relevant section is s. 59 of the Transfer of Property Act, which is as follows:—

“where the principal money secured is one hundred rupees or upwards, a mortgage other than mortgage by deposit of title deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses”.

There is a difference of opinion as shown by the reported cases of the other High Courts on this point. The Allahabad cases are Ram Dei v. Munna Lal, Shib Dayal v. Sheo Ghulam, and Lachman Singh v. Suendra Bahadur Singh. The first two cases in effect hold that you can prove due execution of a mortgage by calling one attesting witness, so that it matters not whether that witness can give any evidence of the attestation of the other witnesses or not. The case of Lachman Singh v. Surendra Bahadur Singh is a decision of a full bench of that High Court and in answer to the question raising this very point with regard to a mortgage, the judgment of the Court is as follows, (p. 1058):—

“Where a mortgagee sues to enforce his mortgage and the execution and attestation of the deed are not admitted, the mortgagee need prove only this much that the mortgagor signed the document in the presence of an attesting witness and one man attested the document; provided the document on the fact of it bears the attestation of more than one person; but if the validity of the mortgage be specifically denied, in the sense that the document did not effect a mortgage in law, then it must be proved by the mortgagee that the mortgage deed was attested by at least two witnesses”.

That case, so far as it deals with contested matters, is inconsistent with the two earlier Allahabad cases. Then comes a case in the Privy Council which has been relied upon, viz. Surendra Bahadur Singh v. Behari Singh. When that case is examined, it will be found that the point we have to consider was not expressly determined by their Lordships, since, as appears from the judgment delivered by Sir Lancelot Sanderson, a single attesting witness who was called was not believed. At p. 1051 appears this passage:

“Then it was urged that at least one attesting witness, viz. Badri Prasad, was called at the trial and therefore the provisions of s. 68 of the Indian Evidence Act were complied with, and no further evidence of the due execution and attestation of the mortgage deed was necessary.

This further contention cannot be accepted by their Lordships, for although Badri Prasad purported to have been an attesting witness, and although he was called at the trial for the purpose of proving the execution of the mortgage deed, his evidence has not been accepted as evidence upon which any reliance could be placed.”

The next case comes from Rangoon, Mirza Mohamed v. Jambulingam Chettyar. Referring to the judgment in the Privy Council in Surendra Bahadur Singh v. Behari Singh, Mr. Justice Mosley says this (p. 125):—

“It is clear from this judgment that the evidence of one attesting witness would in such case only be good evidence if he proved that the mortgage was duly attested (i.e attested by two witnesses). It must be held, then, that this mortgage was not duly attested and is not valid. It will more briefly dispose of the other two findings of the District Judge, both of which I think are clearly unwarranted.”

With great respect to the learned Judge, the Privy Council decision cannot be said to so hold, since no reliance could be placed upon the evidence of the only witness.

Some of the surrounding circumstances in the case before us, such as the marriage in September, 1942, the alleged testamentary document of September 6, 1942, conferring benefits on the new wife and the absence of any benefit for the wife in the document of October 15, 1942, and that the person propounding the will claims a large benefit under it are such that any person who seeks to uphold this document must have realised that the minimum proof permissible to admit an attested document in evidence in uncontested matters would not be sufficient to prove it as a duly executed will of the deceased which ought to be admitted to probate. In fact, as appears from the original petition, an official in the Testamentary Department of this Court endorsed it as follows:—

“As the will was attested by witnesses at different times, the affidavit of the second, attesting witness also should be filed.”

Rule 652 of this High Court provides:

“Upon the affidavit in support of the caveat being filed, the petitioner for probate or letters of administration shall be called upon by notice to take out a summons, and the proceedings shall be numbered as a suit in which the petitioner shall be the plaintiff and the caveator shall be the defendant. The procedure in such suit shall nearly as may be, be according to the provisions of the Code of Civil Procedure.”

I think it most undesirable in a contested matter especially when fraud is alleged that it should have been allowed to go to trial without pleadings and issues defined. The result to be expected, when this is not done, could not be better illustrated than this case, in which considerable time in this Court has been taken up in debating whether the petitioner was taken by surprise at the trial or ought to have known that, besides meeting the allegation of forgery, she had to prove due execution of the will. We have examined the whole position carefully and we are satisfied that the petitioner was not taken by surprise. The presence of the petitioner's witness Mr. Bhagat in Court in itself negatives any such contention. In my judgment the petitioner has failed to prove that the document of October 15, 1942, was duly executed according to law.

The reported cases in the other High Courts are conflicting, and except for the case from Calcutta they all deal with mortgages and not with wills. I am certainly not prepared to say that what is required to prove due execution of a will is the same as that which is required to prove due execution of a Mortgage. Section 63(c) of the Indian Succession Act and s. 59 of the Transfer of Property Act are very different in terms. However it should be observed that s. 68 of the Evidence Act does not say that a document required to be attested by two witnesses shall be proved by the evidence of one of them. All that the section provides is that such a document shall not be accepted in evidence unless the evidence of at least one of the attesting witnesses is called. The words “at least” are of the utmost importance. They presuppose that more evidence may be required, and it can only be by reference to the circumstances of each case that the quantum of evidence necessary to discharge the onus of proof can be measured. In the circumstances of this case, the learned Judge in the Court below was, in my judgment, right in holding that the evidence of Mr. Somne alone was insufficient and it follows that this appeal must be dismissed.

Lastly, as regards costs, the usual rule is that, when the litigation has been caused in effect by the testator, the costs may properly be paid out of the estate. It appears that there was no argument with regard to costs in the Court below and that the learned Judge simply dismissed the petition with costs. In the other appeal No. 1 of 1945 the learned Judge has said that he is not prepared to go to the length of holding that the petitioner in this case had set up a forged will. The petitioner in fact has failed because she did not prove due execution. The testator by calling in a stranger, if he did so, to witness his will whom it may be difficult to trace, has contributed to this litigation, and in my opinion the proper order will be that the petition stands dismissed, but that the order as to the costs of the proceedings in the Court below be varied by a direction that the costs of those proceedings be paid put of the estate as between solicitor and client. This appeal is dismissed with costs.

Divatia, J.:—I agree. The principal point urged by Mr. Khambata on behalf of the appellant is that it was not necessary to examine both the attesting witnesses as the will had been duly proved by examining one of them Mr. Somne. That argument was rejected by Kania J., on the ground that the indian evidence act lays down only the mode of proving and it does not define what is required to be proved under s. 63(c) of the Indian Succession Act. I agree with the learned Judge in holding that it was necessary to prove either by one or more witnesses that both the witnesses had properly attested the will. Section 68 of the Indian Evidence Act lays down that if a document was required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Section 69 provides that if no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least was in his handwriting, and that the signature of the person executing the document was in the handwriting of that person. In the present case s. 69 does not apply because one of the attesting witnesses, Mr. Somne, who is alive has been examined and it is not proved by the appellant that the other attesting witness was dead. Section 68 speaks of proof of execution of the will. That must, in my opinion, mean execution according to the provisions of s. 63 of the Indian Succession Act. Under that section it is necessary for due execution of a will that it must be attested by two or more witnesses, and one of the modes of attestation is that each of the witnesses should receive from the testator a personal acknowledgment of his signature and that each should sign the will in the presence of the testator. It is true that under that section it is not necessary that more than one witness should be present at the same time, and in that respect the provisions of this section differ from the English law. Reading s. 63 of the Indian Succession Act with s. 68 of the Evidence Act, it seems to me to be clear that what the person propounding the will has got to prove is that the will was duly and validly executed and that must be done by not simply proving that the signature on the will was that of the testator but that the attestations were also properly made as required by cl. (c) of s. 63. No doubt s. 68 of the Indian Evidence Act says that it is not necessary to examine both or all the attesting witnesses, but it does not follow therefrom that if one attesting witness only proves that the testator had acknowledged his signature to him, it is not necessary that the acknowledgment by the testator before the other attesting witness need be proved. All that it means is that if two attesting witnesses had signed in each other's presence, it is not necessary to examine both of them to prove that they had received the acknowledgment from the testator. But if, as allowed under s. 63 as well as under s. 3 of the Transfer of Property Act, the attestations to the testator's signature were not made at the same time, it is necessary, in my opinion, to prove that both the persons, who put down their attesting signatures on different occasions, had done so on the acknowledgment of the testator.

Mr. Khambata has relied upon several decisions relating to the execution of a mortgage deed under s. 59 of the Transfer of Property Act. In my opinion, however, the principal case relied upon by him, namely, the full bench decision in Lachman Singh v. Surendra Bahadur Singh, does not support his argument. There were previous decisions of the same Court in Ram Dei v. Munna Lal, Uttam Singh v. Hukam Singh, and Shib Dayal v. Sheo Ghulam, which support his contentions to a certain extent, but all these three cases were distinguished in the full bench decision, and it was laid down there that there was a distinction between proof of execution of the mortgage and proof of its validity. It was held that although it was not necessary to examine both the attesting witnesses for proving execution of the mortgage, it was necessary that both the attestations must be proved to establish its validity. Even accepting the distinction made by the learned Judges of the Allahabad High Court between execution and validity of a mortgage in so far as that principle can be applied to the execution of a will in probate proceedings, it must follow that to prove the valid execution of a will under s. 63, it is necessary that both the attestations must be proved. When a person comes to the Court to establish the authenticity and the valid execution of a will, the mere formal execution and its valid execution cannot be separated. He has got to establish that the will had been validly executed. There cannot be a valid execution without proper attestation under s. 63 of the Indian Succession Act, and if such proper attestation is not proved, there is no proof of execution under s. 68 of the Indian Evidence Act. Even with regard to the case of mortgages the Rangoon High Court has taken a different view from the Allahabad High Court. It was held in R.M.A.R.M Chettyar Firm v. U. Htaw that due execution cannot mean anything less than the signing by the mortgagor and attestation by at least two witnesses. Therefore, although the proviso to s. 68 relieves a party relying upon an instrument of mortgage of the burden of adducing the evidence of one of the attesting witnesses, yet it does not relieve him of the necessity of proving not only that the mortgagor signed the instrument of mortgage but also that he signed it either in the presence of two attesting witnesses or that he acknowledged his signature to each of the two witnesses within the meaning of the term ‘attested’ in s. 3 of the Transfer of Property Act. That decision was followed in Mirza Mohamed v. Jambulingam Chettiyar, where it was held:—

“No doubt only one attesting witness need be called if that attesting witness speaks to attestation by the attesting witnesses. But if he does not do so, it is necessary to prove that the deed was properly attested by those other attesting witnesses.”

In my opinion, this principle would apply with greater force to the case of a will of which probate is sought and that in this case the valid execution of the will was not properly proved even though witness Somne is to be believed.

I agree, therefore, with the order made by the learned Chief Justice.

Attorneys for appellant: Messrs Alreja & Co.

Attorneys for respondents: Messrs Joshi & Co.; Matubhai, Jamietram & Madan.

A.J.P