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Mehnga And Others v. Major Singh And Another

Punjab & Haryana High Court

May 14, 1985

Judgment

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Summary of Opinion — B.S. Yadav, J.

Factual and Procedural Background

The suit concerned the validity and proof of a will (Ex. P-1, copy Ex. D-7) purportedly executed by Smt. Malan in favour of Sheru. The suit land originally belonged to Bishan Singh (died c.1944). Bishan Singh's widow, Malan, later died on 10 February 1972. The present appellants (plaintiffs) filed suit in January 1977 seeking declaration of ownership, injunction, and alternatively possession, asserting that they and defendant No. 2 (Durgi) were heirs of Bishan Singh and that Sheru (defendant No.1) had no right or interest. Sheru defended on the ground that Malan executed a will in his favour on 4 October 1956 and mutation was rightly sanctioned in his favour; he denied allegations of forgery, misrepresentation, or fraud.

At trial the learned trial Court held that execution of the will by Malan had not been proved in accordance with section 68 of the Evidence Act and decreed the suit in favour of the plaintiffs. On appeal the Additional District Judge, Hoshiarpur, held that the disputed thumb-impression on the will was Malan's, that the will was properly attested, and that it was proved in accordance with section 68 of the Evidence Act; the appellate court accepted the appeal and dismissed the plaintiffs' suit. The plaintiffs brought a second appeal to this Court.

Legal Issues Presented

Whether the will Ex. P-1 (copy Ex. D-7) was validly executed in conformity with section 63 of the Indian Succession Act, 1925.
Whether the will was duly proved in accordance with section 68 of the Evidence Act (i.e., whether an attesting witness available and capable of giving evidence had been called to prove execution).
Whether signatures/endorsements by the Sub-Registrar (registering officer) and identifying persons can be treated as attestation animo attestandi for the purpose of section 63.

Arguments of the Parties

Appellants' Arguments

The will was not proved to be properly executed in conformity with section 63 of the Indian Succession Act (formalities for execution and attestation not complied with).
The will was not proved in accordance with section 68 of the Evidence Act because the only surviving attesting witness (Chanan Singh) denied attesting the will in his examination-in-chief.
Reliance was placed on Doraiswami v. Rathnamal (AIR 1978 Mad 78) to support the contention that denial by the only living attesting witness undermines proof of execution.

Respondent / Propounder's Arguments

Lower appellate court findings that the will bore Malan's thumb-impression and was properly attested were not challenged before this Court.
The Sub-Registrar's endorsement and signatures (and accompanying identifying witnesses) indicated the will was produced for registration, read out and admitted as correct — supporting due execution.
The registering officer's signature and the presence/endorsement by identifying witnesses could amount to attestation; Gian Chand v. Surinder Kumar was cited for the proposition that the Registering Officer and identifying witness may be treated as attesting witnesses if they signed in the presence of and after acknowledgement by the testator.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Doraiswami v. Rathnamal, AIR 1978 Mad 78	Illustrates that when the only living attesting witness states he was not present, the court must scrutinise other evidence; mere identification of signature does not automatically prove execution.	The Court held the observations in that case were not directly applicable: unlike Doraiswami, there was no dispute about Malan's thumb impression on the will and endorsement; other corroborative evidence supported due execution here.
Ittoop Varghese v. Poulose, AIR 1975 Kerala 141	When attesting witnesses deliberately and falsely deny attestation, the court may examine other circumstances and the regularity of the will on its face to determine attestation.	The Court relied on this principle to justify looking at surrounding circumstances (endorsement, presence at Sub-Registrar's office, thumb-impression, etc.) to infer due attestation despite denials.
Gian Chand etc. v. Surinder Kumar, (1951) 53 PLR 251	Held that the Registering Officer and the identifying witness before him can be treated as attesting witnesses if proved they signed the will in the presence of the testator after receiving an acknowledgement of signature.	The Court acknowledged this rule but found no evidence in the present case that the Registering Officer (Arjan Singh) had the requisite animus attestandi or signed in the presence of the executant for attestation purposes; thus the authority did not operate to make him an attesting witness here.
M.L. Abdul Jabbar Sahib v. Venkata Sastri, (1969) 1 SCC 573; AIR 1969 SC 1147	Explains meaning of "attested" (drawing on Transfer of Property Act s.3) and emphasises that a signature must be made animo attestandi; a person signing for another purpose (e.g., scribe or registering officer) is not an attesting witness.	The Court relied on this reasoning to hold that the Registering Officer's signature prima facie discharges statutory duties under the Registration Act and does not, without evidence of animus attestandi, make him an attesting witness under section 63.
Girja Datt v. Gandotri, AIR 1955 SC 346	Persons who identified the testator at registration and appended signatures at the foot of the Registrar's endorsement were not attesting witnesses because their signatures were not made animo attestandi.	Used to support the proposition that signatures appended merely as identifiers at registration are not sufficient to establish attestation under section 63.
Abinash Chandra v. Dasrath Malo, ILR 56 Cal 558; AIR 1927 PC 123	Person signing under the word "scribe" was not an attesting witness since signature was for purpose of authenticating scribe role.	Cited as authority that signatures made for purposes other than attesting (e.g. certifying scribe) do not amount to attestation.
Shiam Sunder Singh v. Jagannath Singh, 54 Mad LJ 43; AIR 1927 PC 248	Legatees who signed the will in token of consent were not attesting witnesses and were not disqualified from taking as legatees.	Reinforces the principle that a signature without animus attestandi is not attestation; the Court relied on this line of authority in assessing the nature of signatures on the endorsement.

Court's Reasoning and Analysis

The Court conducted a step-by-step analysis focused on statutory formalities (section 63, Indian Succession Act) and evidentiary proof (section 68, Evidence Act):

The Court accepted that there was no dispute about the thumb-impression on the will being that of Malan and that this impression also appeared before the Sub-Registrar's endorsement.
The Court set out the formal requirements of section 63 (signing/marking by the testator; placement of signature so as to show intent to give effect as a will; attestation by two or more witnesses who saw the testator sign or received personal acknowledgement; each witness signing in presence of testator).
The principal challenge was that the only surviving attesting witness, Chanan Singh, in his examination-in-chief stated that Malan did not execute any will in favour of Sheru and that he did not attest such a will. The appellants relied upon the position in Doraiswami v. Rathnamal to argue that such denial undermined proof of execution.
The Court distinguished Doraiswami: in that case the only living attesting witness said he was not present and the court found the due execution not proved; however, the Court observed that Doraiswami did not result in discarding the will solely on that account and that the court in that matter had considered other evidence. The present case differed because there was no dispute about Malan's thumb-impression and there was corroborative evidence from the Sub-Registrar and the face of the will.
The Court relied on Ittoop Varghese v. Poulose for the principle that where attesting witnesses deliberately and falsely deny attestation, the court may look to other circumstances and the regularity of the will to determine whether attestation occurred.
On the face of the will Ex. P-1 (copy Ex. D-7) the formalities appeared complied with: the attesting witnesses' signatures appeared beneath the word "Gwah" (witness) and Malan's signature/mark beneath the word "Alabad" (executant).
Critically, both attesting witnesses had accompanied Malan to the Sub-Registrar's office. The Sub-Registrar (Arjan Singh) gave evidence that the will was produced before him for registration, was read out to Malan and the attesting witnesses, Malan placed her thumb-impression under his endorsement and the witnesses attested it; he also stated he personally knew Teja Singh who had identified Malan before him. The endorsement (copy Ex. D-6) was in his handwriting.
Given the Sub-Registrar's testimony and the thumb-impression evidence, the Court concluded the surrounding circumstances sufficiently established compliance with section 63 formalities, enabling an inference of due execution even though one attesting witness had given a denial in examination-in-chief.
The Court examined Chanan Singh's cross-examination: he did not specifically deny his attestation on the will and made equivocal statements (stating he did not know if Malan registered any will on the date and that, if his attestation was obtained by fraud, he could not say anything). The Court viewed this equivocation as not amounting to a positive denial which would defeat the corroborating circumstances.
The Court also observed the plaintiffs' expert evidence in the lower appellate court challenged Malan's thumb-impression but the plaintiffs had not examined the expert on whether the attesting witness thumb-marks on the will were those of Chanan Singh — a methodological omission noted by the Court.
The Court addressed the respondent's contention that the Sub-Registrar's signatures at registration constituted attestation for the purposes of section 63, citing Gian Chand etc. v. Surinder Kumar. The Court analysed the role of the registering officer under the Indian Registration Act, 1908 (sections 34(3), 35(1), 58, 59) and accepted the principle from Abdul Jabbar Sahib that the registering officer's signature prima facie discharges statutory duty and does not itself demonstrate animus attestandi unless there is evidence he signed with intention to attest (animo attestandi). The Court concluded there was no evidence the Registering Officer had that intention or signed in the presence of the executant for the purpose of attestation; therefore he could not be regarded as an attesting witness.
The Court cited authorities (Girja Datt, Abinash Chandra, Shiam Sunder Singh) illustrating that signatures appended merely as identifiers, scribes or as part of registration formalities do not amount to attestation unless made animo attestandi. This supported the conclusion that the signature of the registering officer or identifying persons alone did not automatically supply the attestation required under section 63.
Balancing the evidence — the thumb-impression, the Sub-Registrar's corroborative endorsement and testimony, the position on the will's face, and the equivocal nature of the surviving attesting witness's denial — the Court found there was sufficient proof of due compliance with section 63 and that the will had been duly proved under section 68 of the Evidence Act.

Holding and Implications

Holding: The appeal is dismissed; the will Ex. P-1 (copy Ex. D-7) was validly executed by Smt. Malan and has been duly proved.

Implications:

The lower appellate court's judgment accepting the appeal and dismissing the plaintiffs' suit is affirmed by this Court; the suit filed by the appellants is thereby unsuccessful.
Direct consequence for the parties: the propounded will in favour of Sheru (and his legal representative) is upheld, sustaining Sheru's asserted right/interest arising under that will; the plaintiffs' claim of inheritable title and their prayer for declaration/possession/injunction is dismissed as against Sheru on this ground.
The Court did not purport to lay down any new or novel precedent beyond applying established principles regarding attestation (animo attestandi), the evidentiary significance of registering officer endorsements, and the admissibility of surrounding circumstances to establish due execution; the decision turns on the specific facts and evidence in this record rather than announcing a new rule.

H.L.S

Appeal dismissed.

Show all summary ...

B.S Yadav, J.:— It is not necessary to narrate the facts of the case in detail, because the only controversy that was urged before me was, whether the will Ex-P-1 (copy Ex. D-7) propounded by Sheru defendant (who died during the pendency of the appeal in the lower appellate Court and whose son Major was brought on the record, as his legal representative) was validly executed by Malan and has been duly proved.

2. Briefly stated, the facts are that the suit land belonged to Bishan Singh who died near about 1944. He left behind his widow, Malan, who too, died on 10th February, 1972. The present appellants filled the suit in January, 1977 for a declaration that they, alongwith defendant No. 2, Durgi (now respondent No. 2), were the owners of the suit land and Sheru, defendant No. 1 had no right or interest therein. As a consequential relief, they prayed for a decree for permanent injunction, restraining defendant No. 1 from interfering with their possession and that of defendant No. 2 over the suit land or in the alternative, they prayed for possession of the suit land. According to the plaintiffs, they were the sons while Smt. Durgi was the daughter of Ralli sister of the aforesaid Bishan Singh and thus, they were the heirs to his estate after the death of Malan. In defence of the suit, Sheru averred that on 4th October, 1956, Malan had executed a will in his favour and mutation was rightly sanctioned in his favour. He also denied the plaintiffs' allegation that the will was a forged document or a result of misrepresentation and fraud.

3. The learned trial Court held that the execution of the will by Malan had not been proved in accordance with section 68 of the Evidence Act, Accordingly the suit was decreed. Feeling aggrieved, Sheru defendant filed an appeal which was heard by the learned Additional District Page: 26Judge, Hoshiarpur. He held that the disputed thumb-impression of the testator on the will Ex. P-1 (copy Ex. D-7) was of Malan and that the will was properly attested. It was further held that it had been proved in accordance with the provisions of section 68 of the Evidence Act. Consequently, he accepted the appeal and dismissed the suit of the plaintiffs. The plaintiffs have now come up to this Court in second appeal.

4. Before me the learned counsel for the appellants did not challenge the findings of the lower appellate Court that the will Ex. P-1 (copy Ex. D 7) bears the thumb impression of Malan as executant, as well as under the endorsement of the Sub-Registrar. The main point urged by them against the validity of the will Ex. P-1 (copy Ex. D-7) is that it has not been proved to be properly executed in conformity with section 63 of the Indian Succession Act, 1925. That section lays down the formalities required to be observed in the execution and attestation of a will in the following terms:—

“63. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a manner at sea, 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 acknowledgement 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.”

5. It was further argued that the will has not been proved in accordance with the provisions of section 68 of the Evidence Act which lays down that if a document is required by law to be attested, it shall not be used as evidence untill 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.

6. To appreciate the above argument, it may be mentioned here that the will Ex. P-1 (copy Ex. D-7) was scribed by Parmanand, deed-writer, who has since died. His handwriting on this will has been proved by DW-2 Jairam Dass. The will was attested by Teja Singh, Lamberdar and Chanan Singh. Vide statement of DW-3 Sheru, Teja Singh has since died. Thus, the only attesting witness alive is Chanan Singh who has appeared in the witness box for the plaintiffs as PW-4. In his examination-in-chief he has stated that Malan did not execute any will in favour of Sheru, nor did he attest any such will. On these facts, the learned counsel for the appellants argued that when the only alive attesting witness denied the execution of Page: 27the will, it could not be said to have been duly executed, as alleged. In support of his argument, he has relied upon Doraiswami v. Rathnamal AIR 1978 Mad 78. The observations made in that case are not applicable to the facts of the present case. In that case the only alive attesting witness had stated that he was not present when the testator was alleged to have executed the will. It was, therefore, remarked that the will could not be said to have been proved through any of the testator or the scribe. However, the learned Judges did not discard the will on that account alone and considered the statements of the other witnesses who were examined by the propounder to prove the execution of the will. After considering the evidence and the circumstances of the case, it was remarked:

“In these circumstances, it is not possible to accept the version of DW-5 that he can indentify the signature of Annamal in the disputed document Ex. B-1. Even assuming that the signatures found in Ex. B-1 is that of Annamal, it cannot automatically follow that Annamal had executed the will Ex B-1, The identification of the signatures of Annamal in the document will only mean that the document contains the signature of Annamal. That will not amount to proof of the execution of the document, as there is a possibility of Annammal's signatures having been taken on blank paper or on a misrepresentation that the document represents a differrent transanction. We have to therefore, agree with the view of N.S Ramaswami, J. that the due execution of the will Exhibit B-1 has not been proved in this case.”

7. As noticed earlier, in the present case, now there is no dispute between the parties over the point that the will Ex. P-1 (copy D-7) bears the thumb-impression of the Malan as executant. Her thumb-impression also appears before the endorsement of the Sub-Registrar.

8. A similar situation had arisen in Ittoop Varghese v. Poulose AIR 1975 Kerala 141. There one of the attesting witnesses stated in his testimony that he did not see the testator signing and the testator did not see him attesting it. The Other attesting witness stated that he signed without knowing that his signatures were intended as evidence and that he did not see the testator signing the wil. It was remarked:

“But, as we have pointed out earlier, when the court is satisfied as in this case that the witnesses deliberately and falsely denied that they attested the will, the court is entitled to look into the other circumstances and the regularity of the will on the face of it and come to the conclusion on the question of attestation.”

9. Therefore, the question to be seen in the present case is whether there are circumstances from which the Court may infer that the will was duly executed by Malan.

10. The will Ex-P-1 (copy Ex. D 7) purports to have been attested by two persons, namely Teja Singh and Chanan Singh. Both these persons signed below the word ‘Gwah’ (witness). Malan signed below the word ‘Alabad’ (i.e ths executant). So, on the face of the will it can be found that the formalities of due execution the will were complied with.

11. Further both the attesting witnesses of the will Ex. P-1 (copy Ex. D-7) had accompanied Malan to the Sub-Registrar's office, DW-4 Shri Arjan Singh, who during the relevant days, was posted as Sub-Registrar, Page: 28Garhshankar and had attested the will in question, has appeared in the witness box. On oath he has stated that the will was produced before him for registration by Malan. It was read out to Malan, as well as to the attesting witnesses, Teja Singh and Chanan Singh. He has further stated that after admitting the will as correct, Smt. Malan had placed her thumb-impression below his endorsement and the witnesses also attested it. He has also stated that he personally knew Teja Singh who had identified Malan before him. According to him the endorsement, copy of which is Ex. D-6, is in his hand. As noticed earlier, their is no dispute about the thumb-impression of Malan on the will, as well as under the endorsement of the Sub-Registrar. For the foregoing reasons, it is held that the circumstances of the case are sufficient for coming to the conclusion that there is sufficient proof of due compliance of the formalities required under section 63 of the Indian Succession Act.

12. It may be mentioned here that PW-4 Chanan Singh, in cross-examination does not specifically deny his attestation on the will. He has stated in cross-examination that he does not know if Malan got registered any will on October 4, 1956 in favour of Sheru, nor did he know if he and Teja Singh attested any such document. He has also stated that if by fraud his attestation was obtained, then he could not say anything. It shows that Chanan Singh did not dare to take a positive stand that he did not attest the will. The plaintiffs had examined a document expert in the lower appellate Court, namely Shri N.K Jain (RW-1) to prove that the thumb-impression, purporting to be of Malan on the original will Ex, P-1 (copy Ex. D-7) which was got produced in that Court, did not tally with her standard thumb-impression. Surprising enough, the plaintiff did not examine the expert on the point that the thumb-marks purporting to be of PW Chanan Singh on the will as an attesting witness were of his.

13. The learned counsel for the respondent has also raised the contention that the Sub-Registrar's signatures at the time of registration amount to attestation within the meaning of section 63 of the Indian Succession Act. In support of his contention, he has cited Gian Chand etc. v. Surinder Kumar (1951) 53 PLR 251, wherein it has been laid down that the Registering Officer and the identifying witness before him can be treated as attesting witnesses to the will if it is proved that they signed the will in the presence of the testator after receiving from him an acknowledgement of his signature on the will. However, in the present case, there is no evidence to show that the Registering Officer, Shri Arjan Singh (PW-4) had the animo attestandi at the time he signed the endorsement made by him. Nor is there evidence to show that he signed the endorsement in presence of the executant. Without such proof, the Registering Officer cannot be regarded as an attesing witness. In this respect, I may quote here M.L Abdul Jabbar Sahib v. Venkata Sastri (1969) 1 SCC 573 , AIR 1969 SC 1147, wherein it was remarked:

“section 3 of the Transfer of Property Act gives the definition of the word “attested” and is in these words:—

“Attested”, in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some Page: 29other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of them has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary.”

14. It is to be noticed that the word “attested”, the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signatures; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put in his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowldgement of his signature. If a person puts his signature on the document for some other purpose, e.g to certify that he is a scribe or an indentifier or a registering officer, he is not an attesting witness.

15. “In every case the Court must be satisfied that the names were written animo attestandi”, see Jarman on Wills, 8th Ed p. 137. Evidence is admissible to show whether the witness had the intention to attest. “The attesting withesses must subscribe with the intention that the subscription made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not, “see Theobald on Wills 12th Ed. p. 129. In Girja Datt v. Gandotri, AIR 1955 SC 346 (351) the Court held that the two persons who had identified the testator at the time of the registration of the will and had appended their signatures at the foot of the endorsement by the Sub-Registrar, were not attesting witnesses as their signatures were not put “animo attestaudi”. In Abinash Chandra v. Dasrath Malo, ILR. 56 Cal 558 : (AIR 1927 PC 123) it was held that a person who had put his name under the word “scribe” was not an attesting witness as he had put his signatures only for the purpose of authenticating that he was a “scribe”. In Shiam Sunder Singh v. Jagannath Singh, 54 Mad LJ. 43 : (AIR 1927 PC 248) the Privy Council held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting withesses and were not disqualified from taking as legatees.

16. The Indian Registration Act, 1908 lays down a detailed procedure for registration of documents. The registering Officer is under a duty to enquire whether the document is executed by the person by whom it purports to have been executed and to satisfy himself as to the identity of the executant; Section 34(3). He can register the document if he is satisfied about the identity of the person executing the document and if that person admits execution: (Section 35(1). The signatures of the executant and of every person examined with reference to the document are endorsed on the document; (Sec 58). The registering officer is required to affix the date and his signatures to the endorsements: Section 59). Prima facie, the registering officer puts his signatures on the document in discharge of his statutory duty under Section 59 of Registration Act and not for the purpose of attesting it or certifying that he has Page: 30received from the executant a personal acknowledgement of his signature”.

17. The learned counsel for the respondent tried to distinguish the above authority on the ground that in that case, the word “attested” as defined in section 3 of the Transfer of Property Act was being interpreted. I am unable to accept this contention. Though the word “attested” or “attestation” has not been defined in the Indian Succession Act, but the manner in which the will is to be attested, has been laid down in section 63 (e) of that Act. That provision has already been notified. It may be seen that the said manner of attestation is not different from the definition of the word “attested” as given in section 3 of the Transfer of Property Act. Therefore, it is not possible to agree with the learned counsel for the respondent that the observations made in Abdul Jabbar Sahib's case (supra) do not apply in the case of a will.

18. As it has already been held that the will Ex. P-1 (copy Ex.D-7) was validly executed by Malan and has been duly proved, the present appeal fails and the same is hereby dismissed with no order as to costs.