The Sub-Registrar can be regarded as an attesting witness for the purpose of Section 63 of the Indian Succession Act, 1925, if the testator admits execution of the will before the Sub-Registrar and the identifying witnesses.

Grover, J.

1. The pedigree-table showing the relationship between the plaintiffs and Gurditta Mal deceased in respect of whose property the suit out of which the present appeal has arisen was filed is set out in the judgment of the Court below. Makhan Mal who was plaintiff No. 1 but who died later on during the pendency of the litigation was the brother of Gurditta Mal and the other plaintiffs are his sons. Gurditta Mal who owned considerable property, both movable and immovable, died issueless at the age of 92.

On 16th April, 1944 Gurditta Mal had made a gift in favour of the defendants by means of a deed. Exhibit D.25, which he got registered. On 2nd August, 1944 he executed a will, Exhibit D-24, which also was got registered. The effect of the gift and the will was that certain properties were bequeathed to Pritam Devi widow of Bell Ram who was the brother of Gurditta Mals wife and to the other defendants who are the sons of Beli ram.

2. Gurditta Mal died on 19th August, 1947 and when the defendants entered into possession of the properties which had been bequeathed to them on the strength of the will, the suit out of which the appeal has arisen was instituted in 1951 for possession of the houses, shops, lands and movable property and for recovery of mesne profits as detailed in the plaint. The main pleas of the plaintiffs were that the property in dispute was joint Hindu family property as Gurditta Mal constituted a joint Hindu family with the plaintiffs and that he had no power to make a gift or testamentary disposition of these properties.

The execution of the aforesaid documents was also challenged on the ground that Gurditta Mal was under the undue influence of the defendants and was not of sound disposing mind at the time when the documents were executed. The defendants controverted all these and other allegations of the plaintiffs. A very large number of issues were framed which are not necessary to be reproduced. On the principal points, namely, whether Gurditta Mal was a member of the joint Hindu family of was separate and whether the gift deed and the will had been validly executed, the findings of the trial Court were given in favour of the defendants.

It was found that the testator had bequeathed the properties in question to the defendants because they had rendered services to him and were related to him. He had further left house Alif to the plaintiffs and made certain other bequests in favour of the plaintiffs as well. It was also held that the possession of the defendants over the house Alif and the shops Dal and Rey was wrongful and for that reason a sum of Rs. 338/- was awarded by way of mesne profits. Finally the plaintiffs were granted a decree for possession of the house Alif, shops Dal and Rey and for Rs. 338/- on account of mesne profits in regard to these properties. The suit relating to the remaining properties and for other reliefs was dismissed.

3. The learned counsel for the plaintiff-appellants has first of all made a serious effort to challenge the execution of the will, Exhibit D.24, for the reason that the plaintiffs would be entitled to the decree with regard to the properties covered by the will if it is not proved to have been validly executed. The will was scribed by Muni Lal D.W. 3 and purports to have been attested by Muni Lal P.W. 3, Ragho Ram P.W. 4 and Amar Singh who was examined on commission. It was registered by Gurbachan Singh D.W. 2 who was the Sub-Registrar.

In the body of the will it is mentioned that it had been executed and completed in the presence of the marginal witnesses and the testator had thumb-marked it in the presence of those witnesses who had also signed in his presence and that the testator was blind and he had affixed the thumb-impression of his left hand. Muni Lal P.W. 3 and Ragho Ram P.W. 4 deposed that the will had not been executed by the testator in their presence nor did the testator acknowledge its execution or thumb-mark it in their presence.

It