Patna High Court
Dulhin Ful Kueri And Anr. vs Moti Jharo Kuer on 18 January, 1972
Equivalent citations: AIR1972PAT214, AIR 1972 PATNA 214
JUDGMENT Shambhu Prasad Singh, J.
1. This appeal by the objectors is directed against an order granting letters of Administration of a registered will dated 27th of September. 1948 of Rai Kumar Dubey. After an application for probate of the said will was made by the respondent, the appellants entered appearance and filed a petition objecting to the said prayer. The application for probate was, thereafter, converted into a title suit. On the date, however, it was taken up for hearing, the appellants did not appear to contest the suit and the matter was taken up ex parte. One witness, Siujag Tewari, was examined on behalf of the respondent. By mistake his evidence has not been included in the paper book. The evidence included in the paper book is of a witness who was examined for the respondent at the valuation stage. Siujag Tewari has stated in his evidence that Rambeyas Choubey scribed the will according to the instruction of Raj Kumar Dubey, the testator. The contents of the will were read out and explained to the testator in presence of the witnesses and the testator put his pen mark on the will by way of execution and the scribe signed for him at his request, in presence of this witness and other witnesses. This witness and the other witnesses signed the will as attesting witnesses in presence of the testator. He has also proved the will and the signatures thereon. The application filed by the respondent was also in order and fulfilled all the requirements of law. In the circumstances, it cannot be said that the court below erred in passing the impugned order.
2. Mr. Nakuleshwar Prasad, learned counsel for the appellants, has however, contended that no letters of Administration should have been granted to the respondent inasmuch as the will was not properly attested. According to him, since the persons who are witnesses to the will have not stated on the document itself that they put their signature in presence of the testator, the will was not properly attested. Learned Counsel does not appear to be correct in his submission. Section 63 (c) of the Indian Succession Act runs as follows:--
"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 tune, and no- particular form of attestation shall be necessary."
The term 'attested' has also been defined in Section 3 of the Transfer of Property Act and requirements of a valid attestation are same both in the Indian Succession Act and the Transfer of Property Act. Section 59 of the Transfer of Property Act requires that a deed of mortgage should be attested by at least two witnesses. Dealing with attestation of a mortgage in Abinash Chandra Bidyanidhi Bhattacharjee v. Dasarath Malo, AIR 1929 Cal 123, Rankin, C. J., said:
"Now, the word "attested" Is the word to be defined because that word when it is used in the Statute with reference to an instrument is really a shorthand expression and the meaning of it is given at length in this Act -- Act 27 of 1926. The word "attested" occurs not merely as the thing to be defined but as a part of the definition or explanation and it remains, therefore, to enquire in cases such as the present, what is meant by saying that a document has been attested or that its execution has been attested. In my judgment, the matter is reasonably clear. A person may be a witness to the execution of a mortgage or a will 'and' yet may not have written his name at the time by way of saying that he was a witness it is quite clear that in India no formal attestation clause is necessary. Ordinarily a string of signatures towards the end of an instrument or somewhere on the instrument without any explanation will be quite sufficient to show that the persons put their signatures by way of saying that they had seen the document executed or has received an acknowledgment."
Both Section 63 (c) of the Indian Succession Act and Section 3 of the Transfer of Property Act say that no particular form of attestation is necessary. If I may say so with respect, Rankin, C. J. is right in observing that mere signature towards the end of an instrument or somewhere on an instrument without any explanation are quite sufficient to show that the persons put their signature by way of saying that they had seen the document being executed or had received an acknowledgement. Such signatures, in my opinion, are also sufficient to show that they were put in the presence of the testator. However, as required by Section 68 of the Indian Evidence Act, at least one of the attesting witnesses should be examined in proof of the execution of the will what is required is that in order to prove the due attestation of the will, the propounder of the will has to prove that two witnesses saw the testator signing the will and they themselves signed the will in presence of the testator. In the instant case, one of the attesting witnesses Siujag Tewari has proved it. The appeal, accordingly, fails and is dismissed but, in the circumstances, without costs.
Shiveshwar Prasad Sinha, J.
3. I agree. The purpose of attestation of any document is that the attesting witnesses should have witnessed , the document being executed. As laid down in Clause (c) of Section 63 of the Indian Succession Act, quoted above, "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....."
The witnesses who have attested should have seen the testator sign or affix his mark to the will, Now, looking to the will itself I find that two of the witnesses. Ram Bhajan Dubey and Jagarnath Dubey, have put their signature on the will after saying that they were doing so having heard and understood the contents of the will. The will contains the signature of the testator and the signature of Rambeyas Choubey who signed for the testator. The fact that those two witnesses put their signature after making that remark obviously means that these persons put their signature after having heard about the contents of the document and after having understood the same from the person who made the will.