Back
1999 Supreme(P&H) 324
PUNJAB & HARYANA HIGH COURT
S.S.Sudhalkar, J.
Prem Singh
Versus
Gurdial Singh
Regular Second Appeal No. 1396 of 1998,1918 of 1998,
Decided On : MARCH 30, 1999
A will must be properly attested in order to be valid.
Headnote:
WILL - EXECUTION AND ATTESTATION - PROOF - REQUIREMENTS - WILL NOT PROPERLY ATTESTED - NOT VALID.
Fact of the Case:
A will was challenged on the grounds that it was not properly attested. The will was dated 1.4.76 and was registered on 1.7.76. The attesting witnesses were Ram Kishan and Radha Kishan, Advocate. Radha Kishan, Advocate had signed in the margin of the first page of the will and had not signed on any other page including the last page. Ram Kishan had affixed his thumb marks only on the last page and not on the earlier pages of the will. The executant had also not signed below the will on the last page and had affixed his thumb marks only in the margin of four pages of the will.
Finding of the Court:
The court held that the will was not properly attested and was, therefore, not valid. The court found that Radha Kishan, Advocate was not an attesting witness of the will and that the property originally belonged to Amru's father namely Basanta and, therefore, the suit property was ancestral and he was not competent to dispose of or to alienate the same by a will.
Issues: Whether the will was properly attested.
Ratio Decidendi: The court held that the will was not properly attested because Radha Kishan, Advocate had signed in the margin of the first page of the will and had not signed on any other page including the last page. The court also found that Ram Kishan had affixed his thumb marks only on the last page and not on the earlier pages of the will. The court further found that the executant had also not signed below the will on the last page and had affixed his thumb marks only in the margin of four pages of the will.
Final Decision: The court dismissed both appeals and upheld the judgment and decree of the lower court.
S.S.Sudhalkar, J.
1. Both these Regular Second Appeals arise out of the common judgment and these are being disposed, of by this common judgment.
2. Amar Singh alias Amru is alleged to have made a will bequeathing the property to two of his sons viz. Prem Singh an Punjab Singh. The will is dated 1. 4. 76. Amru died on 30. 9. 84. Civil Suit No. 196 of 1989 was filed by another son of Amru viz Gurdial Singh challenging the said will. The suit was decreed and will and the consequent mutation were set aside. Plaintiff Gurdial Singh, Deep Kaur, Prem Kaur and Gobindi widow of Amru were held to be joint owners having 1/6th share each. The judgment and decree were challenged by Prem Singh and Punjab Singh who are beneficiaries of the will and also by Deep Kaur and Prem Kaur vide civil appeal No. 275 of 1997, which was dismissed. Against the appellate judgment and decree Prem Singh and Punjab Singh have filed RSA No. 1396 of 1998 and Deep Kaur and Prem Kaur have filed RSA No. 1918 of 1998.
3. I have heard Mr. R. S. Longia, counsel for the appellants and Mr. Hemant Kumar, counsel for respondent No 1.
4. The will dated 1. 4. 76 is a registered one. The attesting witnesses are (i) Ram Kishan and (2) Radha Kishan, Advocate. The attestation of the will by Radha Kishan has not been proved. The will which consists of 4 pages was written on one side of the paper. Thumb marks of the testator are in the margins of all the four pages. Witness Ram Kishan has also affixed his thumb marks in the margin of last page only while Radhya Kishan Advocate has signed in the margin of the first page only. The various endorsement made in the office of the Sub Registrar are on the back side of the first page of the will. Amrus thumb marks appear below the endorsement regarding submitting the will for registration and also below the endorsement of having admitted the document before the Sub Registrar. Attesting witnesses Radha Kishan, Advocate and Ram Kishan have affixed their signatures and thumb marks respectively below the said endorsement.
5. It was argued by learned counsel for the appellants that the execution and the attestation of the will are duly proved and the will is also properly attested and no infirmity can be found in the same. The courts below have not accepted this argument. The thumb marks of the testator not being below the writing of the last page and being in the margins of the will is also held to be suspicious. Moreover, it has weighed with the courts below that Radha Kishan, Advocate who is said to be one of the attesting witnesses has not signed on the last page of the will and, therefore, the will is not attested by two attesting witnesses as is required by law. The argument of learned counsel for the appellants is that though Radha Kishan, Advocate has not affixed his signatures on the last page of the will, his signatures appear before the Sub Registrar along with the thumb marks of attesting witness Ram Kishan and, therefore, the requirement of legal will have been fulfilled. He also argued that the requirement is also fulfilled by the signatures of Radha Kishan, Advocate in the margin of first page of the will. He also argued that the signatures of an attesting witness and if any lacuna was there, that was already cured at the time of registration.
6. Learned counsel for the appellant in support of his argument that the affixation of the signatures of the Registering Authority also amounts to an attestation has relied on the cases of Lika Dhar v. Smt. Badho and Anr., (1994-1)106 Punjab Law Reporter 525 and Subash Chander Kumar v. Prabhu Dayal and Anr., (1994-1)106 P. L. R. 484. They are the judgments of learned Single Judges of this Court. However, learned counsel for the respondent No. 1 relied on the case of M. L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and Ors. , A. I. R. 1969 Supreme Court 1147 wherein it has been held as under:-
". . . . . Prima facie, the registering officer puts his signatures on the docume
