SHINGHAL, J. - (1.) THE suit brought by plaintiffs Modilal and others having been dismissed on appeal by the learned District Judge of Udaipur on August 7, 1959, they have preferred this second appeal.
(2.) THE dispute is like this: Kalulal, a cousin of plaintiff Modilal, was a resident of village Chandesra, in Mavli Tehsil. He had no issue and it is alleged that he executed a will (Ex. A. 1/d, W. 4) on Chaitra Sud 4, Samwat 2010 (April 7,1954) in favour of the "samast Panch Oswals" of his village, in the 'bahi' of the Pancha-yat, by which he bequeathed his property to the Oswal community. He died the very next day and it is claimed that plaintiff Modilal, who was his nearest heir, executed document Ex. 2 on April 11, 1954 agreeing to the will and the devolution of Kalulal's property on the Oswal panchayat. This document was executed by Modilal for himself and his son Harakchand, who is one of the plaintiffs. Kalulal and Modilal descended from a common ancestor named Vardaji. Modilal was the descendant of Vardaji's second son Khambaji, while Kalulal was the descendant of Vardaji's son Hatuji. Daulalji was Vardaji's eldest son and the other plaintiffs are his descendants. Ambalal, who was one such descendant of Daulalji, also, it is claimed, executed document Ex. 1 on April 12, 1954, along with plaintiff Modilal, in favour of the Panchs upholding Kalulal's will. As a matter of fact, the will in question was got registerad by the Panchas on July 9, 1954. In the mean time, Modilal, his son Harakchand, and Ambalal and his brothers, instituted the present suit on May 20, 1954, challenging the validity of Kalulal's will Ex. A. /d. W. 4 and disowning their agreement to it as incorporated in documents Exs. 2 and 1 on the ground that it had been, obtained by fraud and coercion. THE plaintiffs therefore prayed for a declaration that they were the heirs of Kalulal, that the will (which has been described as a document of gift but which, it is admitted, was really a will) was not according to the law and that the defendants, who are the panchas of the Oswal community, are not entitled to Kalulal's property. THE plaintiffs also prayed for a declaration that the documents Exs. 2 and 1 were not binding on them. THE defendants contested the claim on the grounds that the will was genuine and valid, and that Modilal and Ambalal had voluntarily confirmed it in their documents Exs. 2 and 1. Some other pleas were taken, but it is not necessary to refer to them as they have not been made the subject matter of any controversy in this Court. The Additional Civil Judge of Udaipur upheld the execution of will Ex. A. 1/d. W. 4 but took the view that it could not be noticed as it had not been probated, and he decreed the suit on October 31, 1957. The defendants went up in appeal to the District Judge of Udaipur and as their appeal has been allowed and the plaintiffs' suit dismissed by the impugned judgment dated August 7, 1959, the plaintiffs have, in their turn, presented this second appeal. It has been argued by Mr. Parakh, learned counsel for the plaintiffs-appellants that the will (Ex. A. 1/d. W. 4) could not be said to be valid as its attestation is contained in the body of the document and not below the signature of the executant Kalulal. No such plea was, however, taken in the plaint, and the plaintiffs did not join issue in regard to it. But it appears, that the point was urged in the trial court at the time of the Arguments. The learned trial Judge held, however, that the attestation was in order, and rejected the argument. Thereafter the point was not raised for consideration in the court of first appeal and it has not been made a ground for this second appeal. I cannot therefore allow the argument to be raised at this stage. It has next been argued that the learned District Judge was in error in holding that the will Ex. A. 1/d. W. 4 had duly been attested and that he was guilty of misreading the evidence in this connection. The learned counsel has pointed out that Lalchand D. W. 9, who was one of the attesting witnesses, had merely stated that he attested the will at the request of its executant Kalulal, but he did not state that Kalulal signed it in his presence. On this basis, it has been argued that the learned Judge misread the statement of Lalchand in holding that the witness had stated that Kalulal signed the will in his presence. Further, it has been argued that when one of the attesting witnesses has not stated that Kalulal signed the will in his presence, the evidence of attestation falls short of the requirement of sec. 63 of the Succession Act. To support this argument Mr. Parakh has placed reliance on Girja Datt Singh vs. Gangotri Datt Singh (1 ). Section 63 of the Succession Act, which deals with the mode of attestation of a will, reads as follows - "63. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules. (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) 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 acknowledgement of his signature or mark, or of the signature of such other person: and 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. " There can be little doubt therefore that it is an essential requirement of the law that the attesting witnesses should prove not only that they signed the will in the presence of the testator, but that they had seen the testator sign the will. Their Lordships of the Supreme Court have therefore laid down in Girja Datt Singh's case that in order to prove the attestation of the will the pro-pounder has to prove that the two attesting witnesses saw the testator sign the will and they themselves signed it in his presence. The question is whether the evidence which has been led in the present case is sufficient to prove that Kalulal's will had duly been attested. The question does not really present any serious difficulty and is capable of an easy and a certain answer. As has been laid down by their Lordships of the Supreme Court in Naresh Charan Vs. Paresh Charan (2), the question whether a will had been duly attested or not, is "a pure question of fact depending on appreciation of evidence". In that case the two witnesses, who attested the will merely stated in the examination-in-chief that the testator signed the will in their presence and that they attested his signature. They did not state that they signed the will in the presence of the testator. It was therefore contended that in the absence of such evidence, there was no due attestation within the meaning of sec. 63 of the Succession Act. The trial court and the High Court, however, rejected the contention because of the facts that the execution and the attestation had taken place at one sitting at the residence of P. W. 1, where the testator and the witnesses were present by appointment and it was held that they must have been present until the matter was finalised. Besides, as the witnesses were not cross-examined on the question of attestation, the view was taken that it could properly be inferred that there was due attestation. Their Lordships of the Supreme Court upheld the view on a consideration of all the material, and laid down the above mentioned rule that the question was one of pure fact. I have, therefore, looked into the evidence bearing on the point. The defendants have examined Sarpanch Bhanwarlal D. W. 4, who claims to be present at the time of execution and attestation of the will in the Panchayat 'bahi', which he had taken for the purpose to the testator's house. The witness has further stated that he had gone to the testator's house at his invitation, along with several other persons, including the attesting witnesses Geharilal and Lalchand. Then there is the statement of Kaluram D. W. 10, who is the scribe of the will, that the testator Kalulal dictated it word for word and that he read it out at his behest, that the attesting witnesses attested it, and that Kalulal signed it in his presence. Both the attesting witnesses Geharilal D. W. 8 and Lalchand D. W. 9 have also been examined. Geharilal has clearly stated that he attested the will at the request of its executant Kalulal and that Kalulal signed it in his presence, when 10 or 15 persons were present. The witness has further stated that Lalchand attested the will in his presence, and that the testator was present all through the period during which the will was being written out. So far as Lalchand D. W. 9 is concerned, he has also stated that he attested the will at the request of testator Kalulal who was present at that time and was dictating it word for word. The witness has not stated that Kalu Lal signed the will in his presence, and this has given rise to the argument that the attestation of the will has not been proved to be in accordance with the law. I find no substance in the argument that the will has not been proved to have been duly attested. There is satisfactory evidence on the record to prove that Kalulal, the executant of the will, called the witnesses including the attesting witnesses, to his house for the purpose of executing the will. It has also been proved that he got the will written in the 'bahi' of Samast panchas of the Oswal community of Chandesra, and that the 'bahi' was taken there by Sarpanch Bhanwarlal D. W. 4 for the purpose. 'further, it has been proved that the testator was present all through the period when the will was being written down to his dictation, word for word, at one sitting. There is also satisfactory evidence to prove that the attesting witnesses Geharilal D. W. 8 and Lalchand D. 9 were present during all this period. In these circumstances, the statements of Geharilal D. W. 8 and Lalchand D. W. 9 that they attested the will at the request of its testator Kalulal and the statements of Bhanwar Lal D. W. 4 and; the scribe Kaluram D. W. 10 are quite sufficient to prove that both the attesting witnesses had, as a matter of fact, seen the testator sign the will and attested it at his request. Geharilal D. W. 8, who was one of the attesting witnesses has clearly stated that this was so. The mere fact that Lalchand D. W. 9 stated that he attested the will at the request of Kaluram and stopped short of saying that Kalu Lal signed the will in his presence, cannot justify the argument that Lalchand did not see the testator signing the will. I have no doubt that Lalchand considered it quite sufficient to say that he attested the will at the request of its executant, and if he had been asked whether the executant signed it in his presence, he would have given an affirmative answer. As it is, the plaintiffs did not either attach any importance to the omission in Lalchand's statement as they did not; till then, have any justification for thinking that the attestation was not proper, or they did not have the courage to cross-examine the witness on the point. As the evidence stands, it proves beyond doubt that Lalchand was present all through the relevant period. In fact he attested the will earlier than Geharilal, and when Geharilal has stated that the testator signed it in his presence, it is only reasonable and fair to conclude, as a fact, that Lalchand also saw Kalulal signing the will. The argument which has been built because Lalchand D. W. 9 did not, in so many words, state that he had seen Kalulal signing the will is, to my mind, an after thought. If the plaintiffs had really any reason to think that the will had not been properly attested, they would have raised a plea to that effect in the plaint. The fact that they did not do so, and merely took the plea that the will was not 'vidhivat', shows that they did not have any basis for raising the plea that the document had not been properly attested. This conclusion becomes irresistible on a perusal of the statement of plaintiff Modilal P. W. 15. In his cross-examination he was asked how he pleaded in paragraph 8 of the plaint that the will was not 'vidhivat'. He gave the reply that this was so because the will was not registered and was not shown to him. It would thus appear that the plaintiffs did not think, even during an advanced stage of the trial, that the will was defective for want of proper attestation, and there is therefore no real justification for the argument that the will is invalid because it had not been properly attested. So, even if the finding of fact of the learned District Judge is held to be vitiated because of the so called misreading of the statement of Lalchand D. W. 9, the re-appraisal of the evidence at my hands also leads me to the definite conclusion, on a consideration of all the material on the record that the defendants have succeeded in proving the due attestation of the will. . . . . . . . . . . . . 12. . . . . . . . . . . . . 13. . . . . . . . . . . . . 14. No other point has been argued, and the appeal therefore fails and is dismissed with costs. Leave to appeal is prayed for, but is refused. . ;