- (1.) THIS is an appeal by Shrimati Umrao, widow of Balabux, and Shrimati Naraini, daughter of Badri Narain alias Badri Bux, against the order of the District Judge, Jaipur City, granting Probate of a will said to have been executed by one Ramchandra to Baxi Gopal Bax.
(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 llth 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. 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 ill for a long time before his death, and his mental condition was not sound. In effect the appellants put the respondent Buxi Gopal Bux to the proof of the will. Two issues were framed by the Court below on these pleadings, which are as follows : 1. Whether a will was executed by Ram Chandra 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 Ramchandra, and that he was in a fit state of mind to have made the will. In the present appeal, the appellants contended before us that the will has not been proved as required by law, and that Ramchandra was not in a fit disposing state of mind when he executed the will. We shall first take up the question whether the will has been duly proved. Section 63 of the Jaipur Succession Act No. XIX of 1943 provides how a will shall be executed. Clause (c) 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 the Presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark or of the signature of such other person; & 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 form of attestation shall be necessary. 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, Ramgopal and Nathulal, and we have to scrutinise the statements of these witnesses to see whether the conditions of Clause (c) of Section 63 have been complied with Gajanand stated that Ramchandra 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 Ramchandra had not signed the will in his presence. He did not say that Ramchandra acknowledged his signature on the will before asking him to attest it. The third witness Nathulal stated that Ramchandra got a will-written out by Gajanand in his presence, and identified his signature on the will Ex. 1. He also identified the signature of Ramgopal 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 at the time of the writing and execution of the will Gajanand, Ramchandra, Baxi Gopal Bux and he himself were present, and that Ramgopal came a little afterwards. Besides the statements of these witnesses, we have the statement of Shri Madanmohan Chatterjee, who was the registering officer. He stated that the will was presented by Ramchandra. It was read over to him and he admitted its execution, and added that he had signed it after fully understanding it. The executant was identified by two witnesses, namely Eamgopal and Laxman Singh, and thereafter the will was registered. In cross-examination he said that he did not know the executant himself, nor did he know the two persons who had identified the executant.
(3.) THERE is no doubt that the two attesting witnesses for the respondent have not stated what they should have stated in order to prove that the will was executed in the manner provided by Clause (c) of Section 63. Learned counsel for the respondent, however, relies on certain authorities, and submits that the defect in the statements of the two attesting witnesses, namely Ramgopal and Nathulal has been made good by the evidence of the Scibe Gajanand and the Registering Officer Shri Chatterjee. In Hurro Sundari Dabia v. Chunder Kant Bhuttacharjee, I L R 6 Cal 17 (A), the attestation of the will by the two witnesses was considered useless as these witnesses had signed the will before the testatrix had herself signed it. But the learned Judges held that when the will was presented for registration, the testatrix admitted before the Registrar her execution of the will in the presence of one of the two witnesses. This admission was attested by the Registrar, and by the identifying witnesses. The learned Judges held that if these persons signed their names in the presence of the testatrix as attesting her own admission that she had signed the will, that would be sufficient attestation to satisfy the requirements of the law. The case was there-upon remanded to take evidence on this Point. Thus the view taken in this case was that 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. We accept this. The same view was taken in Amarendra Nath v. Kashi Nath, I L R 27 Cal 169 (B), and it was held that 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. Lastly learned counsel for the respondent relied on the observations of Curgenven J. , in Ganshyamdas Narayandoss v. Gulab Bi Bai, AIR 1927 Mad 1054 (C), at page 1056 to the following effect: " A personal acknowledgment of execution need not necessarily, I think, 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. " We respectfully accept this also. ;