Harnam Singh, J.:— Surindar Kumar, Darshan Kumar, Slush Kumar and Subhash Chandar minor sons of Ghanaya Lal instituted a suit out of which this appeal has arisen, for recovery of Rs. 5392/2/0 on the basis of a registered mortgage deed for Rs. 6000 made on the 24th of October, 1932 by Chhaju Ram, Sant Ram sons of Buta Ram and Sat Pal, Dharam Pal minor sons of Shankar Das in favour of Guranditta Mal, maternal grandfather of the plaintiffs. The plaintiffs pleaded that Guranditta Mal had before his death bequeathed the mortgagee rights to the plaintiffs and that after deducting the amount of Rs. 3850 received on account of principal and interest they were entitled to recover Rs. 5392/2/- by sale of the mortgaged property. Defendant No. 5 was impleaded on the ground that he was a subsequent mortgagee of a part of the mortgaged property.

2. Defendants Nos. 1 and 2 pleaded that the mortgage was without consideration to the extent of Rs. 1470 while defendants Nos. 3 and 4 disputed the validity of the will alleged to have been made by Guranditta Mal in favour of the plaintiffs and maintained that the plaintiffs had no locus standi to maintain the suit. Defendants Nos. 3 and 4 further maintained that during their minority their ¼th share could not have been mortgaged by defendants Nos. 1 and 2 and that they were not bound by the mortgage in question which had not been made for their benefit. Upon the pleadings of the parties the following issues were framed:—

1. Have the plaintiffs a locus standi to maintain the present suit as successors in interest of Guranditta deceased?

2. Did defendants Nos. 1 and 2 for themselves and on behalf of defendants Nos. 3 and 4 execute the mortgage deed in dispute for consideration, and if so whether the mortgage was also effected for the benefit of the minor defendants Nos. 3 and 4?

3. Has any portion of the property in dispute been sold to Amar Nath by the defendants, if so, what is the effect on the present claim of the plaintiff?

4. Whether defendant No. 5 is entitled to any relief? if so, of what nature?

5. To what amount and relief were the plaintiffs entitled?

3. The trial court has found that there was a valid will made by Guranditta Mal whereunder he had bequeathed the mortgagee rights in dispute in favour of the plaintiffs and that the plaintiffs had, therefore, a locus standi to maintain the suit. The trial Court has further found that the consideration of the mortgage made on the 24th October, 1932 was mainly the previous mortgage debt due inter alia from the father of defendants Nos. 3 and 4 and that the mortgage in dispute was made for the benefit of defendants Nos. 3 and 4. On issue No. 3 the trial Court has held that the portion marked ‘Y’ in the plan Exhibit P. 5 had been sold by defendants Nos. 1 and 2 to Amar Nath on the foot of the registered sale deed made on 4th of August, 1934 and that Guranditta Mal, predecessor in interest of the plaintiffs, had on receipt of Rs. 2000 relinquished his security in the portion of the mortgaged property marked ‘Y’ on the plan, P. 5 and that being so, the portion of the house marked ‘Y’ was no longer part of the mortgaged property. Defendant No. 5 has been left to follow his remedy in separate proceedings. On the findings set out above, the trial Court Page: 253has granted a preliminary decree for Rs. 5392/2/- with costs directing defendants Nos. 1 and 4 to pay the above amount within two months of the decree and has ordered that in default of payment of the decretal amount the plaintiffs will be entitled to realise the decretal amount by sale of the mortgaged property shown in plan Exhibit P. 5 except the portion marked ‘Y’.

4. Gian Chand, Chuni Lal and Khirati Ram sons of Chhaju Ram and Sant Ram son of Buta Ram appeal from the decree passed by the trial Court on the 30th of November, 1945 while Sat Pal plaintiffs have been impleaded as respondents in this appeal.

5. Mr. Shamair Chand, learned counsel for the appellant, contends that the plaintiffs have failed to prove that the will Exhibit P. 3 was executed according to the rule laid down in section 63(1)(c) of the Indian Succession Act, 1925. The relevant portion of section 63 enacts:—

“Every testator * * * * shall execute his will according to the following rules—

(a) * * * *

(b) * * * *

(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 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”.

6. Mr. Shamair Chand urges that the evidence given by Ragho Ram P.W 1 and Saran Das P.W 2 does not satisfy the requirements of section 63(1)(c).

7. Now, Ragho Ram P.W 1, the scribe of the will Exhibit P. 3, stated at the trial:—

“Will Exhibit P. 3 was execrated by Guranditta Mal in favour of the present plaintiffs and he signal I it after hiving admitted it to be correct. I knew Guranditta Mal personally”

8. He points out that Rasrho Ram P.W 1 has not stated that the will Exhibit P. 3 was attested by any witness in his presence. He next points out that the evidence given by Saran Das, P.W 2 is of no use to the plaintiffs. Saran Das stated at the trial:—

“I am an attesting witness of the will Exhibit P. 3. Guranditta Mal got it executed in favour of the plaintiffs. The contents were read over to him and he admitted them to be correct and he was in full disposing mind at that time.” Saran Das P.W 2 has nowhere stated that he signed the will in the presence of the testator and there is no suggestion in his statement that any other witness signed the will in presence of the testator. On these facts counsel argues that the requirements of the rule laid down in section 63(1)(c) have not been satisfied.

Mr. C.L Aggarwal, however, urges that the document was presented for registration before Mr. Mohammad Munir, Sub Registrar, on the 6th of September, 1944 at 5 p.m and that in view of the registration endorsement on the document Mr. Mohammad Munir, Sub Registrar, and Lambardar Labh Singh, identifying witness, can be regarded as witnesses who attested the will, P. 3, within the meaning of the rule laid down in section 63(1)(c).

9. Now, the registration endorsement on P. 3 reads:—

“Lala Guranditta Mal aforesaid admitted the execution and completion of this document. He having heard and understood the contents thereof, admitted the same to be correct. He, the testator, was identified by Labh Singh, marginal witness who is known to me.” As already mentioned, Mr. C.L Aggarwal contends that Labh Singh and Mr. Mohammad Munir can be treated as attesting witnesses within the meaning of the rule contained in section 63(1)(c). He bases himself on the portion of section 63(1)(c) which enacts that witnesses who have received from the testator a personal acknowledgment of his signature or mark on the will and have signed the will in the presence of the testator are attesting witnesses within the meaning of the said rule and cites Parshotam Ram v. Kesho Das A.I.R 1945 Lah. 3.

10. Now, in Parshotam Ram v. Kesho Das A.I.R 1945 Lah. 3 it was proved that the will of Mst. Prem Kaur was attested by Brij Lal P.W 6 in the presence of the testatrix after receiving a personal acknowledgment from her of her signatures on the will and that it was likewise attested by Pt. Vishwa Nath P.W 7 and the Sub Registrar K.S Mian Amir-ud-Din P.W 1 in the presence of Mst. Prem Kaur. On those facts Monroe and Abdur Rahman JJ. found:—

“The question therefore is whether signature of the registering officer and at least one out of the two identifying witnesses (i.e of P.W 7 there being no proof on the record that Nanak Chand (P.W 3) had also signed as an identifying witness in the presence of testatrix) before whom the will was admitted to have been executed by Mst. Prem Kaur and who had placed the signature on the will in her presence cannot be regarded to be sufficient compliance of the provisions of section 63, Succession Act. In my opinion, the signatures of these persons are quite sufficient as they fulfil the other conditions of the section, i.e as the will was acknowledged by the testatrix in their presence and as they had placed their signatures on the will in her presence.”

11. The decision in Parshotam Ram v. Kesho Das A.I.R 1945 Lah. 3 lays down that the Sub Registrar and the identifying witness can be regarded as attesting witnesses within the meaning of section 63(1)(c) if it is proved that they having received from the testator a personal acknowledgment of his signature or mark on the will had placed their signature on the will in his presence. Indeed, this aspect of the case has been emphasised in Surendra Bahadur Singh v. Behari Singh A.I.R 1939 P.C 117. In the last mentioned case Sir Lancelot Sanderson delivering the judgment of their Lordships of the Privy Council said:—

“It is to be noted that when the appeal in that case was originally before the Division Bench, the Subordinate Judge was required by the said Bench to consider further the case and record findings upon certain questions of fact stated by the High Court before the questions of law were considered. The subordinate judge in compliance with the order, found the following facts: (1) That the Sub Registrar who registered the Exhibit A made his signature in the registration endorsement referring to the admission of execution by the executants in the presence of the executants.

(2) That the witnesses who identified the executants of Exhibit A before the Sub Registrar were present when the admission of execution of that document was made by the executants. (3) That both the identifying witnesses made their signatures in the presence of the executants of Exhibit A.”

12. Clearly in Surendra Bahadur Singh v. Behari Singh A.I.R 1939 P.C 117 their Lordships of the Privy Council laid down that before the Sub Registrar and the identifying witness can be regarded as attesting witness within the meaning of the rule laid down in section 63(1)(c) it must be proved as a question of fact that the Sub Registrar and the identifying witness made their signatures on the will in the presence of the executant of the will after receiving a personal acknowledgment of his signatures on the will from him. Again, at page 121 of the report their Lordships considering the effect of section 60(2) of the Indian Registration Act, 1908, upon such cases observed:—

“Section 60(2) Registration Act of 1908 provides that the certificate of the registering officer shall be signed, sealed and dated by the registering officer and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by the Act and that the facts mentioned in the endorsement referred to in section 59 have occurred as therein mentioned. But the particulars which are to be endorsed on documents which are admitted for registration, under section 58, do not include statements as to the above mentioned facts, which, in their Lordships' opinion are necessary for proving the due attestation of the mortgage deed according to the provisions of Transfer of Property Act. Sections 58, 59 and 60, Registration Act, therefore, are of no avail to the appellants in this respect.

Reading the endorsements made at the time of the registration as a while, and giving to them natural coining, they appear to be relevant to the matter of registration only, and the witnesses appear to have been present for the purpose of identifying Mst. Jamna Ksnwar and for that purpose only. If it had been intended to rely on the proceedings of the registration as showing that the provisions of the Transfer of Property Act as to due execution and attestation of the mortgage deed were complied with, evidence should have been given on behalf of the plaintiff to prove the necessary and material facts.”

13. Applying the rule laid down by their Lordships of the Privy Council in Surendra Bahadur Singh v. Behari Singh A.I.R 1939 P.C 117, I find that the plaintiffs have failed to prove that the requirements of section 63(1)(c) of the Indian Succession Act have been satisfied. Saran Das P.W 2 has not stated that he signed the will in the presence of the testator nor has he stated that any other witness signed the will in the presence of the testator. Mr. Munir, Sub Registrar, and Labh Singh, identifying witness, have not been examined at the trial as was done in Parshotam Earn v. Kcsho Das A.I.R 1945 Lah. 3. Again, the endorsement of the Sub Registrar is admissible for the purpose of proving that the document has been duly registered in the manner provided by the Act and that the facts mentioned in the endorsement referred to in section 59 have occurred as therein mentioned. The registration endorsement is, therefore, admissible to show that the requirements of section 34(2) of the Indian Registration Act have been satisfied and that Labh Singh actually identified the testator in the presence of the Sub Registrar. The endorsement proves the fact that the testator admitted the execution of the will in the presence of the Sub Registrar but it does not furnish any evidence to the effect that the Sub Registrar or the identifying witness signed the will in the presence of the testator. The presumption in such cases under section 114 of the Evidence Act is that the official act has been regularly performed. Now, section 59 of the Indian Registration Act lays down that the registering officer shall affix the date and his signature to all endorsements made under section 52 and 58, relating to Page: 256the same document and made in his presence on the same day. The registration endorsement on Exhibit P. 3, therefore, evidences the fact that the registering officer signed the will Exhibit P. 3 at any time on the 6th of September, 1944 but the registration endorsement does not furnish evidence of the fact that Mr. Muhammad Munir, Sub Registrar, or Labh Singh, identifying witness, signed the will in the presence of the testator.

14. For the foregoing reasons, I hold that Mr. Mohammad Munir and Labh Singh cannot be regarded as attesting witnesses of the will Exhibit P. 3 and that being so, I hold that the plaintiffs have failed to prove that the will was made in accordance with the rule laid down in section 63(1)(c) of the Indian Succession Act of 1925. Guranditta Mal purports to have made the will, Exhibit P. 3, on the 6th of September, 1944. The Succession Act of 1925 is made applicable to all Hindu wills from the 1st of January, 1927. It is thus clear that attestation by two witnesses was necessary in order to validate the will now before us. As this requirement of law has not been satisfied the plaintiffs had no locus standi to maintain the suit.

15. Mr. C.L Aggarwal next urges that it is a fit case for the examination of additional evidence under Rule 27 of Order XLI of the Civil Procedure Code. Obviously the case does not come within Rule 27(1) of Order XLI of the Civil Procedure Code and under rule 27(1)(b) it is only when the Court requires it that additional evidence can be admitted. The legitimate occasion for the exercise of discretion under this rule is when the court finds it needful to examine additional evidence to enable the court to pronounce judgment, or for any other substantial cause.

16. Now, in the present case the plaintiffs on whom the onus of issue No. 1 lay failed to discharge the onus. In such a case the Court can pronounce judgment against the plaintiffs and does not require an additional evidence to enable it to pronounce judgment. The provisions of Rule 27(1)(b) are not intended to allow a litigant who has been unsuccessful in the trial court to patch up the weak parts of his case and fill up the omissions in the Court of appeal. That being so, in the absence of satisfactory reasons for the non production of evidence in the trial Court additional evidence ought not to be admitted in appeal as a party guilty of remissness in the trial court is not entitled to the indulgence of being allowed to give further evidence under Rule 27(1)(b) of Order XLI of the Code of Civil Procedure. Again. Mr. C.L Aggarwal is not in a position to inform us whether the Sub Registrar or any one of the identifying witnesses would be available to give evidence in the case if additional evidence is allowed to be produced. The case does not, therefore, come withing Rule 27(1)(b) of Order XLI of the Civil Procedure Code.

17. For the foregoing reasons, I would allow the appeal, set aside the judgment and the decree of the trial Court and dismiss the plaintiffs suit. But regard being had to the circumstances of the case, I would leave the parties to bear their own costs in these proceedings. Plaintiffs' suit having been dismissed, cross objections filed by Firm Mathra Das-Kidar Nath have become infructuous and are dismissed, leaving the parties to bear their own costs in proceedings under Rule 22 of Order XII of the Code of Civil Procedure.

18. Falshaw, J.:— I agree

19. Appeal allowed.