- (1.) THIS is an appeal under sec. 299 of the Indian Succession Act by the petitioner Kedar Nath.
(2.) KEDAR Nath field an application in the court of district judge, Jaipur, for grant of probate or letters of administration for the estate of Maliram on the 28th of April, 1952, on the allegations that Maliram died at Jaipur on the 6th of November. 1946, and prior to such death, he executed a will in Jaipur City on the 11th of October, 1944, which was registered on the 11th of January, 1945. The petitioner alleged that Maliram had two sons, one of whom was the petitioner and the other was Sitaram, the will being made in favour of KEDARnath alone. The will marked Ex. P. 2 was produced, and its running translation would be as under : - "i, Maliram, son of Gopi Nath, Khandel-wal, of Jaipur, Chaukari Puranibasti Rasta Govindrajiyan, shop-keeper of groceries in Kishanpol Bazar. Whereas I have two sons Sitaram and KEDAR Nath. Of these my younger son KEDAR Nath was brought up by Mst. Bhuri, widow of Jagannath, from childhood, as she had no son. Bhuri thereafter made KEDARnath his adopted son & performed his marriage, and KEDAR Nath lives in the house property of Jagannath and is in possession of such pro-perty. A partition has already taken place of the ancestral property between myself and my son Sitaram, and both of us are in possession and enjoyment of our separate shares. I am now an old man of 75 years, and cannot say how long I shall live. KEDAR Nath is doing a good service to me, and I am very pleased with him. 1 desire that I should give my property to KEDAR Nath so that he can live happily after me. I, therefore, make this will that after me and my wife, all my immovable property, which has come to me as a result of partition, will vest in KEDAR Nath. He shall have all the rights of ownership, possession and transfer as now vest in me. But so long as my wife is alive, she would have the right to reside in the property, and during that period KEDAR Nath will not have the right to transfer the same. Wherefore this deed of will has been written in sound mind and full senses. Dated 11th October, 1944. Sd/ - itaram in his own pen. Sd/ - Maliram. Witness Badri Narain Jama-dar on being asked by Maliram and Sitaram, in the pen of self. Scribed by Basantlal Sah, Scribe, entered at No. 252, dated 11th October, 1942. " On the back of this document is the endorsement of the Registrar which can be translated as follows: - "this will was presented at 3 P. M. on the 13th of October, 1944, by Kedar Nath in whose favour it is made. At 5 P. M. I, Registrar, reached the house of the legatee as the executant was said to be unable to be present. The document was read over to Maliram executant who was found in a room facing east in the third storey of a haveli facing north in Rasta Jhalaniyan Maliram son of Gopi Nath Mahajan Khandelwal Jhalani executant heard the will, understood it, and admitted its execution, and stated that this has been written at his instance, and the signature affixed was his. Bijai Lal son of Ram Chander Mahajan Khandelwal Bajaj of Rasta Nahargarh and Ramkunwar son of Bala Baksh Mahajan Khandelwal shop-keeper of strings and ropes of Rasta Munshi Jailal identified the executant. Therefore this document was entered in the register of immovable property, Vol. III of Svt. 2001, at No. 40, pages 125 and 126, and after signatures and seal was handed over to the executant. It may be noted that this will shall not affect the rights of any person after the death of the executant. If any dispute arises, this will be evidence of the desire of the executant. Sd/ - Kailash Chandra Jain Registrar, 11. 1. 45. " Below the above endorsement is the seal. The application was treated as an application for grant of probate, and notices were issued. Sitaram filed a caveat on the 22nd of August, 1952. It was pleaded on behalf of Sitaram that the deceased Maliram did not execute and will. He was very ill during that period, and he was not in his proper senses so as to understand a will. The learned District Judge framed two issues : - " (1) Whether the deceased executed a valid will in favour of the appli-cant on the 11th October, 1944? (2) What should be the relief? The petitioner examined 7 witnesses and two documents, in support of his case. The defendant examined three witnesses. The learned District Judge by his judgment, dated 30th September, 1954, rejected the, application. He observed that the will was executed at the house of Kedarnath, and the alleged scribe Basantilal was brought by Kedar-nath, who pointed out the executant to be Maliram. The learned District judge relied on Vellaswamy Servai vs. L. Sivaraman Servai (1), and observed that the propounder of the will was the principal beneficiary, and had taken a leading part in execution of the will and in procuring its registration, and that these circumstances were such as would excite the suspicion of any probate court, and would require that the evidence in support of the will be examined with great vigilance and scrutiny. He applied his mind to the various circumstances of the case. He observed that the alleged will Ex. P. 2 started by saying that Kedarnath had been adopted by Mst. Bhuri and a partition of the ancestral property had taken place between Sitaram and Maliram. He observed that after the adoption of Kedarnath, Maliram and Sitaram became the owners of the ancestral property, and evidently Maliram could not bequeath any portion in the joint property unless there had been a partition as alleged. A partition deed Ex, P. 3 dated 9th January, 1951, was produced. The learned District Judge held that it had not been satisfactorily proved. On that finding it was further held that the property not being held to have been partitioned, it was ambiguous as regards the property sought to be bequeathed, and was unenforce able except after further litigation. He referred to the evidence of Kedarnath that the deceased had shifted from his own house where he lived to the house of Kedarnath some time prior to the execution of the will, and entertained doubt that the deceased had a sound mind at the time of execution. The evidence in proof of the affixation of signature by Maliram on the will Ex. P. 2 was scrutinised. It consisted of the statements of four witnesses - Basantilal, P. W. 2, 2. Badri Narain, P. W. 5, 3. Kedar Nath, P. W. 7, and Shri Kailash Chandra, P. W. 1. With reference to Basantilal it was observed that the scribe did not know Maliram from before, and only acted on the instructions of a person who was pointed out to be Maliram by Kedarnath. Badri Narain testified in support of the execution of the will. He had also affixed his signatures on the deed, and when questioned in respect of the signatures of Maliram, he could only point to his own endorsement wherein the word "mali Ram" appeared on the document. With reference to Kedarnath, there was the admission by Kedarnath that he was not present when Maliram affixed his signature on the will. With reference to Shri Kailash Chandra, there is no criticism. His evidence was that he was the Registrar of the Jaipur Registration Department, and when the document was presented before him with an application that Maliram was ill, accompanied by an affidavit and a medical certificate, he went to the house where Maliram was said to be ill. The witness read out the document, and he wrote what the executant said behind the application that was submitted to him along with the document. He also recorded the statements of two witnesses, and then made the endorsement in his own hand. In his opinion Maliram appeared to be in a fairly good condition, apart from the eye trouble from which he appeared to suffer. The learned District Judge also discussed the evidence led by Sitaram. Sitaram denied the execution of the will by Maliram and the fact of his having affixed signatures on the document. He said that the signatures purporting to be his on the document were not genuine. He said that there had been no partition of the ancestral property between Maliram and Sitaram. The District Judge, while rejecting the fact of partition, observed that he could not understand why Maliram decided to give a portion of his ancestral property to Kedarnath who had been given in adoption elsewhere. After weighing all the circumstances he came to the conclusion that he was not convinced that the alleged will was executed by Maliram and signed by him while he had a disposing mind, and it was also of doubtful validity. The signatures of Sitaram appeared to have been fabricated. Ha accordingly rejected the application. Kedarnath has come in appeal. The case was heard ex-parte on 30th November, 1956, and judgment was reserved. The record was not legible, and on a further application by the respondent the case was put for re-hearing, and arguments of learned counsel for the parties were duly heard. The judgment of the lower court is somewhat confused. The questions as to the fact of execution, the deceased having a sound mind at the time of the execution of the will, the operativeness of the will are different and separate questions. A will may have been executed, but the executant may not have a sound mind. A will may have been executed, and the person executing the will may have a sound mind, but the terms of the will may not be operative. Instead of all these questions having been separately dealt with, a confused judgment has been produced by the learned District Judge. No opinion has, however, been expressed as to whether the will was properly attested. Learned counsel for the appellant has contended that the decision in Vellaswamy's case (1) has been wrongly applied in the present case. The contention is correct. In Vellaswamy's case the propounder took a leading part in giving instructions for the execution of the will and procuring its execution and registration. The evidence of the scribe is that he was sent for by Kedar Nath, but he took instructions from Maliram, made out a draft, read it over to Maliram, then made a fair draft at his own house, and then took it back to Maliram, who then affixed his signatures, and the attestation was also then made. Kedar Nath has also said to the same effect. Finding out a scribe on the request of the person who wants to execute a will, and then leaving the matter later to the executant or to the scribe does not amount to taking part or giving instructions. As to registration, the application was made by, Kedar Nath accompanied by a medical certificate, and the Registrar went to the house of Maliram, verified the execution of the will by examining Maliram and taking the evidence of two other witnesses who identified Maliram. The view taken by the lower court as to the suspicious part played by the pro-pounder of the will is, therefore, not correct. As to the deceased having a sound mind at the time of the execution of the will there is no doubt no medical evidence in support of that fact. The evidence of Basantilal, Badri Narain and Kedar Nath that Maliram was then suffering from some eye-trouble, but otherwise had a sound mind, and could understand the nature of the transaction, is supported by the evidence of Kailash Chandra, who is an independent witness. He testified that the document Ex. P. 2 was read over to the executant, and he understood it and admitted that it had been got scribed by him, and that he had signed on the document. The witness said that besides the eye-trouble and debility due to old age,, he appeared to be all right. Ram Kanwar, P. W. 3, who identified Maliram before the Registrar, also said that he was of sound mind at the time when the document was read over to Maliram. The rebutting evidence on behalf of Sitaram is not reliable. Sitaram said that Maliram at first suffered from catarrh and thereafter had pain in his eyes, from which he suffered for about 6 or 7 months, and thereafter got an attack of paralysis on the right side. A boil also grew on the right hand, and he had begun to stammer. He suffered from paralysis for a period of six years prior to his death. When cross-examined as to what treatment was being administered to Maliram, the witness said that he himself at first gave some medicine, but did not do so after Maliram had shifted to the house of Kedar Nath. When pressed, the witness said that Dr. Bhola Nath used to treat Maliram. When it was suggested that Bhola Nath had died long before the death of Maliram, the witness said that Dr. Pran Nath, son of Dr. Bhola Nath may have been treating Maliram. When again pressed that Dr. Prannath was serving in the Army elsewhere, he only said that he may have come back. He admitted that Maliram had shifted to the house of Kedar Nath of his own accord, and Sitaram had arranged that shifting to the house of Kedar Nath. If Maliram was so ill as the witness suggests, it is strange that Sitaram, who was apparently on good terms with his father, did not arrange for the treatment of Maliram. He does not say as to what was the condition of Maliram after he had shifted to the house of Kedar Nath. Nathu Lal D. W. 1 said that Maliram suffered from paralysis for 5 or 6 years prior to his death. The disease was on his left side, and that he had a boil on his right hand, and could not write. He could not also speak properly. In cross-examination the witness said that Maliram died after a lapse of 5 or 6 months of his being taken to the house of Kedar Nath. The witness said that he did not go to see Maliram after he had shifted to the house of Kedar Nath. Suraj Narain D. W. 2 also said that Maliram suffered from paralysis for a period of 5 or 6 years prior to his death and the said paralysis was on the left side of his body, and the boil was also on his left hand. He said that he could not remember when Maliram died or whether he got an attack of paralysis first or suffered from the boil first. He only saw him once or twice during his illness, and that was a year of six months before his death. The evidence of these witnesses is discrepant and unreliable. While Sitaram said that the paralysis fell on the right side of his body, his witnesses said that the left portion of Maliram was affected by paralysis While Nathulal and Sitaram said that there was a boil on the right hand, Suraj Narain said that it was on the left hand. None of them stated that they went to see Maliram within six months of his death. It must, therefore, be held that Maliram had a sound mind at the time when he purported to execute the will. The affixation of the signatures of Maliram is deposed to by Basanti Lal P. W. 2, scribe, and Badri Narain, P. W. 5, attesting witness. Their evidence is supported by the evidence of Shri Kailash Chandra P. W. 1. Badri Narain has also properly identified the signatures of Maliram to be at point 'a' on the document Ex. P. 2, and I have not been able to fallow the criticism of the learned District Judge When he has said that Badri Narain could not identify the signatures properly, and only identified the word "maliram" ap-pearing in the endorsement made by the witness himself. The learned District Judge has evidently misread the evidence. Nathulal D. W. 1 was asked whether the signatures on the document Ex. P. 2 were those of Maliram. He only saw the word "maliram" at point "c" (which word appears in the endorsement of Badri Narain) and said that the word "maliram" was not in the pen of the deceased Maliram. The evidence does not lead anywhere for the point "c" was on the endorsement by Badri Narain. Suraj Narain D. W. 2 said that he had seen Maliram's handwriting, and that the signatures at point "a" on Ex. P. 2 purporting to be of Maliram were not his. In cross-examination he said that Maliram used to write prescriptions in Urdu, and he never saw his handwriting in Hindi, and he could not identify his handwriting in Hindi. The signatures purporting to be of Maliram are in Hindi on the document, and, therefore, the evidence of this witness is also Useless. The evidence led by the plaintiff so far as his witnesses Basantilal, Badri Narain and Kedar Nath is concerned is meagre, but when it is coupled with the evidence of Kailash Chandra, there remains no doubt that the signatures on Ex. P. 2 purporting to be of Maliram were affixed by Maliram himself.
(3.) THE next question which arises in the case is whether the will has been properly attested. THE will was said to be attested by Sitaram and Badri Narain. THE finding of the lower court is that the signatures purporting to be the signatures of Sitaram were not genuine. THE court should have found that the will was not properly attested, but this finding was not definitely given. THE plaintiff, however, cannot get relief unless the will is proved to have been properly attested. Learned counsel for the appellant urges that the signatures of Sitaram had been duly proved, and, therefore, there was valid attestation by two wit-; nesses. In the alternative he also argued that the verification at the time of registration and the subsequent signatures of the two identifying witnesses as also of the Registrar amounted to a proper attestation even if the attestation of Sitaram be considered to be in any way defective, or as not having been proved, what the Registrar did was to get an admission of the deceased Maliram oh a separate piece of paper Ex. P. 1 (copy only on accord) other than the alleged will, obtain the signatures of the identifying witnesses also on that other paper, and finally to write on it : - "it is ordered that copies be prepared of the original document, way be entered in the register of stamps, a receipt be given, and the document be produced before me on the 7th December, 1944. Sd/ - Registrar. " The endorsement of registration on the back of the alleged will was made on the 11th January, 1945, which has been reproduced above. The various authorities lay down that even if there be some defect in attestation by witnesses1 of the will, if the document is admitted by the executant, and he affixed his signatures in the presence of two witnesses and such witnesses also affixed their signatures in the presence of the executant at his request, may be for identi-fication, and the Registrar also affixed his signatures underneath, it amounts. to a signing over again of the will by the executant) and its attestation by two or more witnesses also takes place, as the relevant conditions mentioned in sec. 63 of the Indian Succession Act are fully complied with, and there is no time limit for such execution and attestation. It is not necessary to consider this aspect of the case, because in the present case the acknowledgment of signatures under the statement of admission of execution and signatures of the other witnesses were taken on a different piece of paper to wit, the back side of the application by Kedarnath tor registration of the record of the Registration Department. The Registrar did not sign on an order underneath the signatures of the attesting witnesses. That signature is also on the other document. The subsequent proceedings before the Registrar, therefore, do not amount to a due execution and attestation. In this connection the following observation by Theobald in his treatise on Wills (Eleventh Edition), page 39-40, is relevant : - "but the signatures, if not on the same paper as the will, must be on a paper physically connected with it. We will, therefore, have to see the document itself for finding if it was properly attested. The document bears the signature of the executant Maliram, and as discussed above that signature is, in my opinion, on the evidence, proved to be the genuine signature of Maliram. Two other signatures are also on the will, vis. , Sitaram and Badri Narain. Sitaram has denied his signatures on the will, but two witnesses Badri Narain and Basantilal say that Sitaram was present at the time, and affixed his signatures. Basantilal is fairly independent, and Badri Narain is also not in any way under the thumb of the petitioner. There is no reason to doubt his testimony on oath. I, therefore, hold that the signatures of Sitaram appearing on the document were affixed by him. This, however, does not dispose of the matter, for we have to find that these signatures were for the purpose of attesting the will. The complication arises by the fact that Badri Narain while affixing his signatures has said that he is. attesting the will at the request of Maliram and Sitaram. Further, while there is the letter Ga meaning Gawai or attestation, where Badri Narain subscribed his signature, that letter or word does not appear as a prefix to the signature of Sitaram. On the other hand, there is only the letter 'da' meaning thereby Dastkhat (signature) or subscription, which letter also occurs as a prefix to the signature of Maliram. The document, as it stands, appears to have been subs-cribed by both Maliram and Sitaram as executants, and Badri Narain as attesting witness. The oral evidence is also not to the effect that Maliram asked Sitaram to attest the will. The two witnesses who speak about this are Basantilal and Badri Narain. Basantilal P. W. 2 said that he had written the will on the instructions of Maliram, which was Ex. P. 2. This will bears the signatures of Maliram, and attestation of Sitaram and Badri Narain. Sitaram was the son of Maliram. That is his opinion rather than the evidence of the process of bringing into existence the will. Badri Narain states how the will was brought into existence. He says that the scribe brought a document which was read over to Maliram, who after understanding it affixed his signature. Then Sitaram, the elder son of Maliram, who was present, affixed his signature. Thereafter Maliram and Sitaram both asked him to attest, whereupon he attested it. The statement of Badri Narain is quite truthful for in the subscription of attestation he has mentioned that he was attesting the document at the request of both Maliram and Sitaram. In Sarkar Barnard & Co. vs. Alak Marjary Kueri (2) the two wives of a certain Maharajah Kumar Jagat Mohan Nath Sah Deo of Chota Nagpur executed a mortgage in favour of Sarkar Barnard & Co. and the deed contained the following recital : - "the deed is executed by us with consent and permission of our husband so that he may not in future raise objection realization of debt by sale of mortgaged property (villages ). Our husband signed as witness in the bond in evidence of the above facts. " The signatures in the deed were as follows: - "signature. . . . . . Srimati Alangamanjari Kueri Barkuerain Sahib. By my own pen. " "signature. . . . . . Srimati Mohan Manjari Kueri Chotkuerain. By my own pen. " "signature,. . . . Maharaj Kumar Jagat Mohan Nath Sah Deo of Chota Nagpur. " Witnessed by. . . . . . Sabral Or Saphal. It was held that the document was not properly attested by the Maharaj Kumar, but was attested by only one witness Sabral. A contention that the Maharaj Kumar not being one of the executants, he must have signed the document as attesting witness was rejected on the ground that he did not purport to sign the document as was done by the attesting witness Sabral or Saphal. There was in the case a recital in the bond. The recital in the bond was held to establish that the Maharaj Kumar did not sign the document as attesting witness, but as giving his consent to the transaction. A contention that as the evidence established that the Maharaj Kumar signed the document after seeing the execution of the document by his wives it must follow that he signed as an attesting witness was also negatived on the ground that in the first place he did not purport to sign the document as attesting witness, and in the second place the document established that he signed the document as giving his approval to the transaction and not as an attesting witness. The above view, which was taken by the High Court of Patna, was approved by the Privy Council. There are certain facts in the present case also which indicate further that Sita Ram's signatures must have been obtained to secure his approval rather than for the purpose of attestation. The document mentions (l) that Kedarnath was taken in adoption by Mst. Bhuri, and (2) that the ancestral property was partitioned between Sitaram and Maliram. Kedarnath in the present case has come to court as the son of Maliram rather than of Jagannath, whose widow is said to have adopted him as mentioned in the will. The fact of partition seems to have been a disputed one then, as it is now. It seems, therefore, probable that Sitaram's signatures were in the nature of signifying approval to a certain state of facts which were otherwise then in dispute as they are now, and his signatures were not as that of an attesting witness. As a result of my above finding, while I do not agree with the reasons given by the lower court for rejecting the application, I agree with the conclusion, and hold that this appeal be and is hereby dismissed. I will not allow costs to the respondent as the various pleas taken by him have been found to be of no force. Learned counsel for the appellant wants leave to appeal. I do not think it is necessary, but should it be necessary, I grant it. . ;