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Rajasthan High Court, Jaipur Bench
Wanchoo C.J. & Sharma, J.
Shrimati Umrao - Appellant
Versus
Bakshi Gopal Bux - Respondents
Civil Misc. First Appeal No.12
Decided On : August 23, 1955
Even though the witnesses, who signed as attesting witnesses do not prove the attestation in the manner provided by law, the will can still be proved if two witnesses are available who fulfil the requirements of the law as to attestation. Similarly the certificate of admission of execution testified by the signatures of the Sub-Registrar and of a witness is sufficient attestation to satisfy the requirements of law.
A personal acknowledgment of execution need not necessarily, be restricted to an express statement to that effect, but may include words or conduct, or both, on the part of the testator which may be construed unequivocally as such an acknowledgment.
It cannot necessarily be presumed from the fact that signature of the scribe appeared at the end of the document that he must have signed in the presence of the testator.
All that R. says is that he signed the document in the presence of the testator. He however, does not say that it was his will which he should witness. The statement of R. is not that the testator told him that this was his will, and he should attest it. If the testator had said that, it might not have been necessary for him to say in so many words that the will bore his signature. The statement, therefore, proves only one part of clause (c) of sec. 63, namely that the witness signed in the presence of the testator, but not that the testator signed in the presence of the witness or acknowledged his signature.
The statement of the Sub-Registrar is only sufficient to prove that the testator acknowledged his signature on the will. There is, however, nothing to show that the Sub-Registrar signed on the will in the presence of the testator. The endorsement on the will by Sub-Registrar says that the will was presented on the 9th of March, 1946. Then follows the statement that Ramchandra admitted its execution. Lastly, there is the endorsement to the effect that it was registered in such and such book and at such and such page. This endorsement is dated 11/04/1946. It is, however, not clear from the statement of the registering officer whether Ramchandra came a second time on the 1lth of April 1946, to get the will registered. It may be that Ramchandra came only on the 9th and admitted the execution of the will, and the registering officer put down his endorsement on the 1lth of April The evidence, therefore, of the Sub-Registrar does not comply with the provisions of clause (c) of sec. 63.
2. The case put forward by Baxi Gopal Bux was that the deceased Ramchandra executed a will on the 9th of March. 1946 and registered it on the 11th of April, 1946 Ramchandra died in January, 1947, and thereafter the present application was made by Baxi Gopal Bux, who was the executor of the will for probate.
3. The application was opposed by the appellants. It was denied by them that any will had been executed by Ramchandra. In the alternative it was said Ramchandra was a very old man and had not a disposing state of mind and had been for a long time before his death, and his mental condition was not sound. In effect the appellants put the respondent Baxi Gopal Bux to the proof of the will.
4. Tow issues were framed by the court below on these pleadings, which are as follows:.
(1) whether a will was executed by Ramchandra on 9-3-46?
(2) whether Ramchandra was in a fit mental condition?
Both the issues were tried together and the court below came to the conclusion that the will in dispute had been executed by Ram Chandra and that he was in a fit state of mind to have made the will.
5. In the present appeal, the appellants contend before us that the will has not been proved as required by the law, and that Ram Chandra was not in a fit disposing state of mind when he executed the will.
6. We shall first take up the question whether the will has been duly proved. Sec 63 of the Jaipur Succession Act No XIX of 4943 provides how a will shall be executed. Clause (e) of that section, with which we are concerned, says that 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 she presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature 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 from of attestation shall be necessary.
7. It is contended on behalf of the appellants that the provisions of clause (c) have not been proved to have been complied with in the execution of this will, and therefore, due execution cannot be held to have been proved. The will has been signed by Ramchandra and scribed by Gajanand. The two attesting witnesses were Nathulal and Ram Gopal. The respondent produced Gajanand, Ram Gopal and Nathulal, and we have to scrutinise the statements of these witnesses to see whether the conditions of clause (c) of sec. 63 have been completed with. Gajanand stated that Ram Chandra signed the will in his presence. He also stated that Ramchandra had brought a draft and had given it to him, and he faired it out on the directions of Ramchandra; Ramgopal said that he attested the will at the request of Ramchandra, but added that Ram Chandra, had not signed the will in his presence. He did not say that Ramchandra acknow-ledged his signature on the will before asking him to attest it.
8. The third witness Nathulal stated that Ramchandra got a will written out by Gajan-and in his presence, and identified his signature on the will Ex. 1. He also identified the signature of Ramgopa|l on the will. He did not say however that Ramchandra signed in his presence or acknowledged before him that he had signed the will. All that he said was that the time of the writing and execution of the will Gajanand, Ramchandra, Baxi Gopal Bux and he himself were present, and that Ram-gopal came a little afterwards.
9. Besides the statements of these witnesses we have the statement of Shri Madan Mohan Chatterjee. who was the registering office
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