IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (Ord.) No.5 of 2003. Reserved on: 30.05.2008. Date of decision: June 02, 2008. Rajinder Singh … Appellant Versus Kuldeep Singh & Ors. … Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Ms Bindiya Sharma vice Mr.R.K. Sharma, Advocate. For the Respondents : None. Kuldip Singh, Judge. The appellant respondent No.2 has filed this appeal against the order dated 18.1.2002 passed by learned District Judge, Kangra at Dharamshala in Succession Case No.7-J/v/2000 whereby probate on the basis of Will Ext.PW-3/A dated 25.12.1994 has been granted in favour of respondent No.1. 2. The facts, in brief, are that respondent No.1 alleged that his grand father Sartaza had executed Will dated 25.12.1994 in his favour, therefore, he applied under Section 276 of the Indian Succession Act, 1925 (for short ‘the Act’) for probate of Will dated Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 25.12.1994 after the death of Sartaza who died on 4.10.1995. Sartaza had left behind some property including some movable assets and on the basis of Will dated 25.12.1994 of Sartaza only respondent No.1 is entitled to such assets left by Sartaza. 3. The petition was contested by appellant etc. by filing reply. In the reply preliminary objections of maintainability, suppression of material facts, locus standi, res-judicata and respondent No.1 has not approached the Court with clean hands have been taken. A prayer for dismissal of the petition with special costs has also been made in the preliminary objections. On merits, it has been denied that Sartaza had executed any Will in favour of respondent No.1 Kuldeep Singh. It has been submitted that respondent No.1 earlier filed Civil Suit No.261 of 1998 claiming movable assets of Sartaza on the basis of Will dated 25.12.1994. The suit was contested and was ultimately dismissed as withdrawn on 28.4.2000 by learned Sub Judge 1st Class, Jawali. It has been submitted that Sartaza was living with Rajinder Singh and Rash Pal who performed his last rites. Puran Singh, father of the parties, was also living with Rajinder Singh and Rash Pal who died in the year 1997. The appellant etc. ultimately made prayer for dismissal of probate case filed by respondent No.1. The rejoinder was filed to the reply of respondent No.1 in which the case set up in probate petition was reiterated. The learned District Judge ultimately on 18.1.2002 held that execution of Will dated 25.12.1994 Ext.PW-3/A has been proved and, therefore, respondent No.1 is entitled to grant of probate …3… of the Will. The decision dated 18.1.2002 has been assailed by way of present appeal. 4. I have heard Ms.Bindiya Sharma, learned counsel appearing for the appellant and gone through the record, none appeared for respondent No.1. On behalf of the appellant, it has been submitted that learned District Judge has misconstrued and misinterpreted the material on record. The Will dated 25.12.1994 Ext.PW-3/A has not been proved to be executed in accordance with Section 63 of the Act. In fact, execution of the Will has not been proved on record, therefore, respondent No.1 is not entitled to grant of probate on the basis of alleged Will dated 25.12.1994. 5. PW-1 Kuldeep Singh has stated that his grand father Sartaza died on 4.10.1995 and copy of his death certificate is Ext.PW-1A. Sartaza had executed Will dated 25.12.1994 in his favour. The Will was scribed by Gur Prasad. Baldev Singh and Sadhu Ram are the attesting witnesses of the Will. He had filed one suit earlier which was withdrawn as the Will was ordered to be registered by Registrar vide Ext.PW-1/B. In cross examination, he has stated that Tehsildar (Sub-Registrar) refused to register the Will vide order dated 16.10.1998 who found the Will to be forged. He has admitted that before the Registrar he did not implead his brothers and sisters as parties. 6. PW-2 Kailash Chand is a witness who produced record of complaint No.94-1/99. PW-3 Gur Prasad has stated that he was asked to scribe Will Ext.PW-3/A which bears his signatures as scribe. …4… Baldev Singh and Sadhu Ram signed this Will as witnesses. PW-4 Baldev Singh has stated that Will Ext.PW-3/A is signed by him. This Will was got prepared by Sartaz Singh in his presence which was scribed by Gur Parsad at the instance of Sartaz Singh. The Will was read over to Sartaz Singh who put his signatures on the Will after admitting its correctness. The Will was signed by Sadhu Ram as a witness along with him. In cross examination, he has stated that the Will was first of all signed by Sartaz Singh and thereafter he signed the Will and left the place. When others signed the Will he does not know. Sadhu Ram did not sign in his presence as he had left the place. 7. The Will is to be executed in the manner provided under Section 63 of the Act which is as follows:- “63. Execution of unprivileged Wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner 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. …5… (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 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.” 8. The Will Ext.PW-3/A is allegedly signed by two attesting witnesses, namely, PW-4 Baldev Singh and Sadhu Ram, who has not been examined. PW-3 Gur Parsad is the scribe of the Will and he cannot be termed as attesting witness also of the Will inasmuch as from his statement as well as other evidence on record it has not been proved that PW-3 Gur Parsad signed the Will as attesting witness also. In N.Kamalam (Dead) and another versus Ayyasamy and another, (2001) 7 SCC 503, the Supreme Court has held that the effect of subscribing a signature on the part of the scribe cannot be identified to be of the same status as that of the attesting witnesses. The signature of attesting witness requiring attestation is a requirement of the statute and cannot be equated with that of scribe. In N.Kamalam’s case (supra), Arunachalam did write the Will …6… and has also signed the document as a scribe and not a witness. Arunachalam has specifically identified himself as writer and not a witness. On those facts, the Supreme Court has held that the Will fails to have its full impact and its effect stands out to be non est. In the present case, PW-3 Gur Parsad has stated that he signed the Will as scribe. He has nowhere stated that he signed the Will as an attesting witness. It does not emerge from the statement of PW-3 that he had the animus or intent to attest the Will when he signed the Will as scribe. Thus, signatures of PW-3 Gur Parsad as scribe on the Will Ext.PW-3/A cannot be equated with an attesting witness. 9. As per Section 63 of the Act the execution of a Will requires two attesting witnesses. PW-4 Baldev Singh in his examination-in-chief has stated that Sadhu Ram signed the Will along with him as an attesting witness but in cross examination he has contradicted himself by deposing that the Will was first of all signed by Sartaz Singh, thereafter it was signed by him and he left the place. When others signed the Will, he does not know. Sadhu Ram did not sign the Will in his presence as he had left the place. Therefore, signatures of Sadhu Ram as attesting witness on the Will Ext.PW-3/A have not been proved. The Will is required to be signed by two attesting witnesses and that statutory requirement has not been fulfilled in the present case and the execution of Will Ext.PW-3/A has not been proved. The learned District Judge has not considered the legal requirement of execution of Will. In these circumstances, impugned order is not sustainable and deserves to be set aside. …7… 10. In view of the above discussion, appeal is accepted and order dated 18.1.2002 passed by learned District Judge, Kangra at Dharamshala in Succession Case No.7-J/v/2000 is set aside and consequent probate dated 23.1.2002 granted in favour of respondent No.1 Kuldeep Singh is also set aside. June 02, 2008(soni) ( Kuldip Singh ) Judge. …8…