RSA No. 2672 of 1982 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2672 of 1982 (O&M) Date of Decision: September 16, 2009 Kartar Kaur ...... Appellant Versus Kewal Singh and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Ashwani Kumar, Senior Advocate with Ms. Nimrata Shergill and Mr.Harminder Singh, Advocates and Mr.Arun Jain, Senior Advocate with Mr.Sushil Sharma, Advocate for the appellants. Mr. Akshay Bhan, Advocate with Mr.Santosh Kumar, Advocate for the respondents. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the judgement of the learned lower Appellate Court reversing that of the trial Court and consequently dismissing the suit of the appellant granting a decree for possession of land measuring 130 kanals 18 marlas. It is not disputed that the land in dispute was owned by Surmukh Singh, brother of Narain Singh, father of the appellant. It is also not in dispute that said Surmukh Singh died issueless. The appellant apart RSA No. 2672 of 1982 (O&M) 2 from being the natural heir relied on Will dated 25.2.59 while the respondents relied on a subsequent Will dated 5.1.1966 which was executed a few days before the death of said Surmukh Singh. It is not disputed that out of the two witnesses of the Will dated 5.1.1966 one was not produced while the other deposed against the same. The learned lower Appellate Court, however, relied on the testimony of the Registrar to the effect that he had read out the contents of the will to the testator when it was presented before him whence he again ascribed his thumb mark in his presence and held that this statement proved the execution of the Will as envisaged under Section 68 of the Evidence Act. The question of law proposed is as under:- “Whether the Sub Registrar could be taken to be an attesting witness?” The learned lower Appellate Court has relied upon Earnest Bento Souza v. John Francis Souza and others reported as AIR 1958 Calcutta 440, Asharfi Devi v. Tarlok Chand etc. reported as AIR 1965 Punjab 140 and 1971 Niranjan Singh etc. v. Parsa Singh alias Parsu reported as 1971Current Law Journal 195, to hold that in certain circumstance the Sub Registrar could become an attesting witness within the meaning of Section 63(1)(c) of the Succession Act. However, learned Senior Advocate on behalf of the appellant has relied upon Benga Behera and another v. Braja Kishore Nanda and others reported as 2007 (3) Civil Court Cases 390 wherein the Hon'ble Supreme Court held as follows:- “28. “We may notice that this Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam [2003(1) Apex Court Judgments 186(S.C.):(2003)2 SCC 91] laid down the law on interpretation and application of Section 71 of the act in the following terms” “ 11.Section 71 of the Evidence Act is in the nature of a RSA No. 2672 of 1982 (O&M) 3 safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the will,m its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses,who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c)of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will........” 34. A question has also been raised as to whether a certificate by Sub-Registrar at the time of registration proves attestation. A Sub Registrar in the matter of registration of a document acts under the provisions of the Registration Act, 1908(1908 Act). Section 52 of the 1908 Act prescribes the duty of Registering Officer when document is presented in terms thereof. The signature of every person presenting a document RSA No. 2672 of 1982 (O&M) 4 for registration is required to be endorsed on every such document at the time of presentation. Section 58 prescribes the particulars to be endorsed on documents admitted to registration, such as : “(a) Signature of the person admitting the execution of the document; (b) Any money or delivery of goods made in presence of Registering Officer in reference to the execution of the document shall be endorsed by the Registering Officer in the document presented for Registration. Therefore this is the only duty cast on the Registering authority to endorse on the will, i.e. to endorse only the admission or execution by the person who presented the document for registration. The compliance of this provision leads to the legal presumption that the document was registered and nothing else...” 35. If an authority in performance of a statutory duty signs a document, he does not become an attesting witness within the meaning of Section 3 of the Transfer of Property Act and Section 63 of the Succession Act. The term 'attestation' means: “to 'attest' is to bear witness to a fact. The essential conditions of valid attestation are (i) two or more witnesses have seen the executant sign the instrument (ii) each of them has signed the instrument in presence of the executant. 36. “Animus attestandi” is a necessary ingredient for proving the attestation. If a person puts his signature in a document only in discharge of his statutory duty, he may not be treated to be an attesting witness. 37. The Registering Officer Rabindranath Mohanty was examined as P.W.8. He, in his deposition, stated: “........I asked the executant her name, the name of the person in whose favour the Will was executed and the nature of the document. ....... She admitted before me that she has executed the Will after understanding the full import of the admission of execution of the Will.” RSA No. 2672 of 1982 (O&M) 5 While Registering the Will, the Registering Officer has endorsed: “Execution is admitted by the above Sarajumani Dasi who is identified by Sri Banabihari Upadhyay s/o Harihar Upadhyaya, Advocate's clerk of Bhubaneswar.” 38. In Dharam Singh v. Aso and another [ 1990(Supp.) SCC 684], this Court held: “2. The two attesting witnesses did not support the execution of the will. The trial court relied upon the statement of the registering authority and on the basis of decisions of the Lahore and Punjab and Haryana High Courts found that the will had been proved. The lower appellate court reversed the decision by relying upon two decisions of this Court in M.L.Abdul Jabhar Sahib v. H.V.Venkata Sastri & Sons, AIR 1969 SC 1147 and Seth Beni Chand v. Kamla Kunwar, AIR 1977 SC 63. 3. We have examined the record and are satisfied that the appellate court and the High Court were right in their conclusion that the Registrar could not be a statutory attesting witness. Therefore, the conclusion that the will had not been duly proved cannot be disturbed.” 40. It is now well settled that requirement of the proof of execution of a Will is the same as in case of certain other documents, for examine Gift or Mortgage. The law requires that the proof of execution of a Will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove execution and attestation of the Will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of the executant. (see Madhukar D.Shernde v.Tarabai Aba Shedage, 2002(1) Apex Court Judgments 130 (S.C.): (2002)2 SCC 85:Janki Narfayan Bhoir v. Narayan Namdeo Kadam, 2003(1) Apex Court Judgments 186(S.C.): (2003)2 SCC 91 and Bhagatram v.Suresh and others,(2003) 12 SCC 35). RSA No. 2672 of 1982 (O&M) 6 In this view of the matter the question of law proposed has to be held in favour of the appellant and consequently that the respondents were not able to prove the will in their favour. In the circumstances this appeal is allowed. The judgment and decree of the learned lower Appellate Court are set aside and that of the learned trial Court are restored. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE September 16, 2009 sunita