Document writer cannot be attesting witness.

1. This testamentary suit is filed by two plaintiffs, who are admittedly the children of late J.Nagabooshanam Ammal, who died on 8.11.1984. Apart from the plaintiffs, deceased had left the defendant V.Mathibooshanam and one Mukuntharaman also as her children. It is said that Nagabooshanam Ammal had executed a will on 7.5.1980, bequeathing properties in favour of plaintiffs. No executor has been appointed. Plaintiffs undertake to administer the property. They say that they are the universal legatees, entitled to get Letters of Administration.

2. When caveat was entered by the daughter Mathibooshanam, the petition was converted into a testamentary suit.

3. In the written statement filed by the caveator, she denied execution of any will by her mother and also put forward contentions questioning the genuineness of the will produced by the plaintiffs.

4. On the above pleadings, an issue was suggested namely, ‘whether the will dated 7.5.1980 is true, valid and genuine?

5. In this case, second plaintiff was examined as P.W.1 and thereafter defendant examined herself as D.W.1. Plaintiffs wanted an opportunity to reopen the matter, and on their application, on 22.8.1995, I passed an order re-opening the case. I said that the plaintiffs will be given an opportunity to examine witnesses, not as court witnesses, but the plaintiffs have to take steps for examination of the attestors, and the case was posted to 31.8.1995. Thereafter, on the request of the plaintiffs, the case was being adjourned from time to time, and finally, there was not even a representation on the side of the plaintiffs. The case was posted for dismissal on 28.9.1995. On that day, it was represented that though steps were taken, summons were returned on the ground that there was no such person and, therefore, the plaintiffs requested that the matter may be adjourned further. The request was not granted, and the case was posted for arguments on 10.10.1995 and the matter was heard on 3.11.1995, and judgment was reserved. Thereafter, when the case was posted on 10.1 1.1995 for pronouncement of the judgment, plaintiffs filed Application Nos.5896 and 5897 of 1995 requesting that the matter may be re-opened and that they may be permitted to examine a document writer as their witness. On 10.11.1995, these applications were allowed on condition that the plaintiffs should pay costs to the defendant on or before 17.11.1995. On 17.11.1995, it was presented that costs had been paid. Hence, I adjourned the case for examination of witnesses and directed the plaintiffs to produce the witness on 24.11.1995. Accordingly, the document writer was examined on 24.11.1995 and the case was posted for arguments on 1.12.1995, on which date at the request of the plaintiffs the suit was adjourned to 8.12.1995. On that date, arguments were heard.

6. Even though sufficient opportunity was given to the plaintiffs to prove the will, I do not think they have not availed the opportunity properly. The document writer cannot be treated as an attesting witness for the will which is marked for reference as Ex.P-1. The name of P.W.2 is not seen any where in the original. In the certified copy that is produced on the day when P.W.2 was examined, his name appears as a document writer. It is seen therefrom that the purpose of his signing the document is only to note that he prepared the same. When he signs the will only in his capacity as a document writer, he cannot be treated as an attesting witness. It has been so held by the Supreme Court in Addul Jabbar v. Venkata Sastri, 1969 (3) S.C.R. 513 : A.I.R. 1969 S.C.1 147 and in Rajammal v. Chinnathai, A.I.R. 1976 Mad.4. In the earlier decision, their Lordships held thus:

“The word ‘attested’ occurs in Sec.3 of Transfer of Property Act, as part of the definition itself. To attest is to bear witness to a fact. The essential conditions of a valid attestation under Sec.3 of Transfer of Property Act are: (1) two or more witnesses have seen the executant