( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1460 OF 2005 Smt. Leelabai Suresh Adhav .. Appellant Versus Shakuntalabai Janardan Adhav deceased through L.Rs. & ors. .. Respondents Shri S.S. Kulkarni, Advocate for the appellant. Shri Milind M. Patil (Ahmedpurkar), Advocate for the respondents. CORAM : P.R. BORKAR,J. DATED : 18.07.2009 P.C. :- 1. Heard Adv. Shri S.S. Kulkarni for the appellant and Adv. Shri Milind M. Patil (Ahmedpurkar) for respondent No.3. This Second Appeal is filed by original plaintiff whose suit bearing Regular Civil Suit No.549 of 1992 for relief of possession as well as injunction based on will dated 15.05.1997 was dismissed by the Jt. Civil Judge, Junior division, Kopargaon, by his order dated 27.12.2000; which ( 2 ) judgment and decree is further confirmed in Regular Civil Appeal No. 5 of 2001 by the Additional District Judge, Kopargaon, on 12.10.2004. 2. Briefly stated it is case of present appellant Leelabai that Suresh was her husband. One Bhima was original ancestor. He had four sons Ramrao, Laxman, Vitthal and Shamrao. Janardan was son of Ramrao and Suresh was his son. Laxman was survived by his wife Shahabai, who died issueless. Original respondent No.1 Shakuntalabai and respondent No.2 Parvatabai were widows of Vithal. Shamrao also died issueless. It is Shahabai who had executed a will in respect of her property on 15.05.1977 in favour of Suresh. Shahabai expired on 02.11.1977. Suresh expired on 12.03.1992. In these circumstances the appellant/plaintiff Leelabai is claiming title to the suit property belonging to Shahabai on the basis of the will and claims possession and mesne profits. 3. Both the Trial Court and the First Appellate Court dismissed the suit mainly on the ground that the will was not duly proved. In para 12 of the Appellate Court’s judgment we ( 3 ) find necessary discussion in which it is stated that P.W.2- Gaikwad had attested the thumb impression of Shahabai on the will. There is also endorsement made by the Special Executive Magistrate – Mr. Jadhav, stating that Shahabai had made thumb impression in his presence & thumb impression was attested by Gaikwad who was known to him. The plaintiff/appellant did not examine either the Special Executive Magistrate – Jadhav or any of the attesting witnesses. Thus, the person examined as witness to prove the will is the person who had attested the thumb impression of the deceased and he is not the attesting witness on the will. P.W.2 Gaikwad has written the document and also attested the thumb impression. However, in his evidence P.W.2-Gaikwad was silent regarding signatures of other witnesses as attesting witnesses on the will. It is observed by the Appellate Court that what he has stated was that even Shahabai did not put her thumb impression on the will. The learned advocate argued that since thumb impression is attested by Adv. Shri Gaikwad, it must be presumed that the thumb impression was taken in his presence. The First Appellate Court also noted that P.W.2 – Gaikwad in his cross-examination admitted that he was unable to state as to mental and physical condition of ( 4 ) Shahabai on the date of execution of will-deed. He further admitted that no witness had signed on the will in his presence. The contents of the will were narrated by deceased Suresh and his friends. Then he again stated in the cross- examination that Shahabai did not put her thumb impression on the will in his presence and he was unable to state if the impression on the will was of Shahabai or of any other person. Thus, the will is not proved. 4. The learned advocate Shri S.S. Kulkarni for the appellant was good enough to provide xerox copy of will for perusal of this Court. He argued that the will is admissible under Section 80 of the Indian Evidence Act. Section 80 of the Indian Evidence Act, 1972 reads as follows:- 80. Presumption as to documents produced as record of evidence – Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume - that the document is genuine; that any ( 5 ) statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken. . The Section clearly speaks about the record or memorandum of the evidence or part of the evidence given by the witness in judicial proceeding or any officer authorized by law to take such evidence or statement or confession by prisoner or accused person, taken in accordance with the law and purporting to be signed by any Judge or Magistrate shall be admitted in evidence as genuine document. Section 80 does not speak about will. The Special Executive Magistrate is not authorized to record will as evidence. He was not holding any enquiry or proceedings. He did not state in his endorsement that whatever mentioned in the will was admitted by Shahabai before him as true. All that he stated is that one Shahabai to whom P.S. Gaikwad identified had put thumb impression in his presence. 5. The learned advocate for the respondents Shri Milind M. Patil (Beedkar) relied upon case of Janki Narayan Bhoir V/s. Narayan Namdeo Kadam - AIR 2003 S.C.761, Apoline D’Souza V/s. John D’Soiuza – AIR 2007 S.C.2219 and Bhagat Ram ( 6 ) V/s. Suresh, AIR 2004 S.C.436. The law is well settled that for proving a will, at-least one attesting witness must be examined. In this case Gaikwad attested the thumb impression, but he did not sign as an attesting witness. There appears to be signatures of other persons but none of them is examined. As can be seen from the case of Bhagat Ram (Supra), unless Registrar of Deeds signs in personal capacity as attesting witness, his signature in presence of testator and even acknowledgment by the testator about execution of document before Registrar is not held to be attestation. 6. In the facts and circumstances of the case, this appeal does not raise any substantial question of law. The same deserves to be dismissed. Hence, the Second Appeal is dismissed at the stage of admission. [P.R. BORKAR,J.] snk/2009/JUN09/sa1460.05