P. Narayana Pillai, J.@mdashThe question that arises for determination in this appeal is whether Exhibit A1, the will produced in the case, has been sufficiently proved to be duly executed. The facts we only state in the very smallest compass. The suit is for redemption of 2 mortgages executed on 11-6-1937 and 13-9-1933 by one Devarajan in favour of his first wife, the 1st defendant. The 8th defendant is his second wife. The 9th defendant is their son. The 7th defendant is the father of the 8th defendant. On 29-4-1949 Devarajan executed a will bequeathing all his assets in favour of defendants 7 to 9. By the later will, Ex. A1, he cancelled the earlier will and bequeathed his assets to the plaintiff, who is his brother, and defendants 8 and 9. It was on the strength of Ex. A1 that the suit for redemption was filed after Devarajan''s death. The 1st defendant contended that Ex. A1 was vitiated by fraud and that it was invalid. According to defendants 7 to 9 also Ex. A1 was invalid. They said that as Ex. A1 was invalid the earlier will dated 29-4-1949 took effect after Devarajan''s death.
2. The suit was decreed in favour of the plaintiff by the Munsiff, Ponnani, before whom it was filed. That decision was confirmed in appeal by the Additional Subordinate Judge, Ottapalam. In the Second Appeal filed before this court our learned brother, Raghavan J, confirmed the decisions of the lower courts. Our learned brother also granted leave to the 1st defendant to appeal. That is how the matter has now come up before us.
3. The plaintiff in the suit can succeed only on proper proof of execution of the will, Ex. A1. It was on 28-9-1950 that Ex. A1 was executed. At the foot of the last page of it Devarajan''s signature appears along with the signatures of 2 attestors, Karunakara Panicker and Kuttyman. Kuttyman was examined as Pw.3. He denied having seen Devarajan and Karunakara Panicker sign in Ex. A1. He did not say that he had received from Devarajan a personal acknowledgment of his signature. He was declared hostile and allowed to be cross-examined by the plaintiff. Karunakara Panicker was not examined in the case. Ex. A1 was registered on 30-9-1950 by Pw. 1, the Sub Registrar. It was Devarajan who produced it before Pw.1 for registration. Two witnesses, Kuttan and Hydrose Kutty, identified Devarajan when he produced Ex. A1 for registration. After Devarajan and the identifying witnesses signed on the back of the first page of Ex. A1, Pw. 1 also signed there. The 2 identifying witnesses were not examined in the case. Pw.1 deposed that Devarajan admitted in his presence the execution of Ex. A1. He also deposed that he and identifying witnesses signed in the presence of Devarajan. Finally he said that the identifying witnesses only identified Devarajan and that they put their signatures in the document only in token of that. From this state of the evidence can it be taken that Ex. A1 has been sufficiently proved in the case?
4. There is conflict of opinion as to whether the signature of the Registering Officer affixed at the time of registration is valid attestation of the execution of the document. Some of the reported decisions bearing on the matter relate to wills and the others to documents executed under the Transfer of Property Act, mainly mortgages and gifts.
5. Before dealing with the reported decisions it is necessary to note the relevant statutory provisions about the matter. Section 63 of the Indian Succession Act which deals with the execution of wills, reads as follows :-
63. 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.
(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. A mortgage other than one by deposit of title deeds can be made only by a written document if it is for Rs. 100/- or more. The signature of the mortgagor in it has to be attested by at least 2 witnesses. The material part of Section 59 of the Transfer of Property Act which provides for that reads thus:
Sec. 59. Where the principal money accrued is one hundred rupees or upwards, a mortgage (other than a mortgage by deposit of title-deeds) can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
7. A gift of immovable property can be made only by a registered document signed by or on behalf of the donor and attested by at least 3 witnesses. The material portion of Section 123 of the Transfer of Property Act which provides for it reads as follows:
123. For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of donor, and attested by at least two witnesses.
8. Under the English law the persons purporting to attest an instrument shall be present and see for themselves what passes at the time of its execution. They must be witnesses to the fact of actual execution. In other words, the executant must put his signature to the document in the presence of the attestors. In Sryan and Others v. White 1850 163 E R 1330 Dr. Lushington laid down.
"Attest" means the persons shall be present and see what passes, and shall, when required, bear witness to the facts.
and in Ford v. Kettle 1882--9 Q.B.D. 139 Jessel M.R. said:
What then does "attestation" mean? It is a well known legal term. The ordinary form of attestation is "signed scaled and delivered" by the person who executes in the presence of the attesting witness. That is what "attestation" means. The thing must be done in the presence of the man who in the future will be able to testify that it was done. The authorities show that there is no attestation unless the thing is done in the presence of the attesting witness.
and Lindley L.J. said
What is attestation? The being present when a thing is done and seeing it done, so as to be able to give testimony that it was done.
9. An attestation made on the admission by the executant of execution without the attestor having seen the executant sign the document is a valid attestation u/s 63 (c) of the Succession Act. In Tofaluddi Peeda v. Mahar Ali Shaha ILR 26 Cal 78 the Calcutta High Court and in Shamu Pattar v. Abdul Kadir Rowtan ILR 35 Mad 607 the Privy Council held that the provision in the Succession Act could not be taken as a guide to the interpretation of the word "attest" as used in the Transfer of Property Act. In the latter decision it was also held that for the Transfer of Property Act that word had to be given the same meaning that it had under the English law. After that decision the definition of the word "attested" was inserted thus in Section 3 of the Transfer of Property Act by amendment.
''attested'', in relation to an instrument, means (and shall be deemed always to have meant) attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.
By the above insertion the meaning of the word ''attested'' as used in the Transfer of Property Act has been brought into conformity with that in the Succession Act.
10. Sections 68, 70 and 71 of the Evidence Act which deal with proof of documents which are required by law to be attested read thus:
63. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied.
70. The admission of a party to an attested document of its execution by itself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.
71. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
11. Some documents do not require attestation for their validity. In their case any one can come forward and say that he saw it being executed. But in the case of a document, whether testamentary or non-testamentary, for which attestation is mentioned in statutes as a condition precedent to its validity, the general rule is that it has to be proved by one of the attestors if he is alive. If the attestor denies the execution of the document it can be proved by other evidence. Section 70 of the Evidence Act dispenses with proof of a document by an attestor if the executant admits its execution. That is an exception to Section 68 of the Evidence Act. The admission by the executant is proof of execution only as against him. Such admission is of no use when he is not a party to the proceeding where the controversy regarding proper proof of the document arises and that controversy is between other persons. Moreover the admission contemplated by Section 70 of the Evidence Act must be in the same proceeding where the document is produced and the controversy has arisen. Such stringent safeguards are made regarding use in evidence of a document which is required by law to be attested in order to avoid fabrication of false evidence.
12. u/s 17 of the Registration Act all non-testamentary instrument which purport to create an interest of the value of Rs. 100/- and upwards in immovable property are compulsorily registrable. u/s 18 of that Act registration of wills is only optional. It is section 47 of the Act that provides for the time from which registered documents have to operate. That section can now be read.
47. A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made and not from the time of registration.
As is evident from section 2(h) of the Succession Act which defines a will thus:
"will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
a will, whether it is registered or not, takes effect only from the death of the testator. But a registered non-testamentary instrument, if there is nothing in it to indicate that its operation is intended to be postponed, takes effect from the date of its execution. In other words in the case of such a document if the dates of execution and registration are different, it takes effect from the date of execution and not from the date of registration. Therefore unlike a non-testamentary document in the case of a will even if there is no attestation on the date it bears or on the date of registration attestation is permissible even after registration.
13. The word "attestation" means an act in relation to the execution of the instrument. That act must be done with the intention of attesting the executant''s signature. The character in which the signatures were made is really a material consideration. The court must be satisfied that the witnesses affixed their signatures animo attestandi. Prima facie the identifying witnesses at the time of registration affix their signatures in a document not in token of their having seen the executant sign at the time of execution but only in token of their having identified him at the time of registration and the Registering officer affixes his signature only in token of his having performed the obligations imposed on him by the Registration Act. In other words they, prima facie, only subscribe their names to the endorsement and in token thereof affix their signatures there. While subscription is a manual act attestation is a mental act. Therefore, taking a broad commonsense view, the Registering Officer and the identifying witnesses cannot prima facie be said to be persons who sign the document as attestors.
14. The decisions bearing on the question whether the signature of the Registering officer at the time of the registration of the document can be taken as attestation can now be considered.
The Indian Registration Act, 1908 lays down a detailed procedure for registration of documents. The registering officer is under a duty to enquire whether the document is executed by the person by whom it purports to have been executed and to satisfy himself as to the identity of the executant, s. 34 (3). He can register the document if he is satisfied about the identity of the person executing the document and if that person admits execution, [s. 35(1).] The signatures of the executant and of every person examined with reference to the document are endorsed on the document, s(58). The registering officer is required to affix the date and his signature to the endorsements (s. 59). Prima facie, the registering officer puts his signature on the document in discharge of his statutory duty under s. 59 and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature.
The evidence does not show that the registering officer D. W. Kittoo put his signature on the document with the intention of atesting it. Nor is it proved that he signed the document in the presence of the executant. In these circumstances he cannot be regarded as an attesting witness, see Surendra Bahadur Sing v. Thakur Behari Singh (1939) 2 M. L. J. 762). Likewise the identifying witnesses Sankaranarayana and Kaki Abdul Aziz put their signatures on the document to authenticate the fact that they had identified the executant. It is not shown that they put their signatures for the purpose of attesting the document. They cannot therefore be regarded as attesting witnesses.
15. All the above decisions relate to registered documents coming within the provisions of the Transfer of Property Act. They have nothing to do with wills. In the case of a will it is sufficient if it is proved that at any time before the death of the testator he had either signed in the will or made an acknowledgment of his signature in the presence of 2 or more witnesses and those witnesses signed in the will in the presence of the testator. The signature of the testator should be so placed that it shall appear that he intended to give effect to the writing as a will. That is clear from Section 63 (b) of the Succession Act. Ordinarily the signatures of the testator and the attestors appear at the foot or end of the will. In such cases the signatures appear after the dispositive part of the will and they prima facie show that the testator intended to give effect to the entire contents of the will. But there is nothing prohibiting the testator and the attestors affixing their signatures at some portion other than the foot of the will also. In such cases there must be proof that the testator intended to give effect to the writing as a will.
A will is not required by law to be registered. Thus, it might be enough for the compliance of the rule of execution and attestation if the testator actually admits execution before the Sub-Registrar and the identifying witnesses. Like a mortgage deed a will need not be executed and attested first before it is presented for registration. Only two safeguards are needed for a will, namely, execution and attestation. If these are supplied at the registration, the requirements are fulfilled. The case of a will therefore is entirely different from a case of a mortgage and cannot be relied upon as a clear guide.
If we may say so with respect we are in complete agreement with the following observation, to the extent it goes, of our learned brother in the judgment under appeal:
In a case coming under the Transfer of Property Act, where a document becomes complete and valid only on registration, the Sub-Registrar and the identifying witnesses at registration may not become attesting witnesses. But in a case where the document is a will which does not require registration, the Sub-Registrar and the identifying witnesses, if they conform to the law regarding attestation, may become attesting witnesses.
16. After considering all aspects of the matter our conclusions are as follows:--
(1) In the case of a non-testamentary instrument which requires attestation and which is registered the signatures of the registering officer when he made the endorsement on the document at the time of registration and of the identifying witnesses when they identified the executant before the registering officer are not prima facie signatures of attesting witnesses.
(2) In the case of a will it is open to the propounder of it to show that it was signed by the testator and attested by the requisite number of witnesses either before registration or at the time of registration or even after registration.
(3) From the mere fact that at the time of production of the will for registration the testator and the identifying witnesses affixed their signatures and at the time of registration the registering officer affixed his signature to the will it cannot be presumed that there was due execution including attestation of the will at the time of registration.
(4) The question as to whether the registering officer and the identifying witnesses signed as attestors also in the will at the time of registration is one of fact.
17. In the instant case no doubt Pw. 1 deposed that Devarajan admitted to him the execution of the will and signed in his presence, that he and the identifying witnesses signed in Devarajan''s presence and that the acknowledgment of execution by Devarajan, and the affixing of signatures by all of them took place on the same day. But he admitted that the identifying witnesses only identified Devarajan and that they signed in token of that only. There is no evidence that Devarajan ever asked Pw.1 or the identifying witnesses to attest the execution. There is also no evidence that any of the identifying witnesses had received from Devarajan a personal acknowledgment of his signature or that the acknowledgment that Devarajan made to Pw.1 was within the hearing of any of the identifying witnesses. In these circumstances, the evidence of Pw. 1 is insufficient to make up the lacuna which otherwise existed in complying with the formalities of the will and there is, in our opinion, no proof that the will was executed in the manner provided by Section 63(c) of the Succession Act. We may without impropriety say that we much regret the conclusion we are compelled to arrive. The objection is highly technical but we should not allow hard cases to make bad law. The suit must fail.
18. C.M.P. No. 4521 of 1969 is an application filed by the 8th defendant who has come of age for her being transferred to the array of the plaintiff. According to her right to redeem the mortgages had not been properly agitated so far by her guardian appointed in the suit. It is open to her to file a fresh suit for redemption. It is unnecessary to implead her as an Additional plaintiff at this stage. Hence her application for that relief is dismissed. In the result, we allow this appeal and dismiss the suit; but as we think that the failure to prove the will is due to the counsel presumably not knowing what is to be proved u/s 63 of the Succession Act we order the parties to bear their costs throughout.
