Kartar Kaur vs Kewal Singh and Another

R.L. Anand, J.—Unsuccessful Plaintiff Smt. Kartar Kaur has filed the present R.S.A. and it has been directed against the judgment and decree dated 9.9.1982 passed by the Court of Additional District Judge, Bathinda, who set aside the judgment and , decree dated 17.10.1978 passed by the Court of Sub Judge 2nd Class, Bathinda, who decreed the suit of Smt. Kartar Kaur, Plaintiff Appellant measuring 130 Kanals 18 Marlas, fully described in the head note of the plaint.

The pleadings of the parties can be summarised in the following manner:

Surmukh Singh son of Bhola Singh, resident of village Maur Kalan, a who was owner of the land measuring 130 Kanals 18 Marlas as described in the head note of the plaint. Surmukh Singh and Narain Singh were real brothers. Surmukh Singh died issueless. Smt. Kartar Kaur Plaintiff is the daughter of Narain Singh. After the death of Narain Singh, his property was inherited by his real brother Surmukh Singh deceased. Surmukh Singh and Narain Singh real brothers, were born to Smt. Mahan Kaur from the loins of Bhola Singh. After the death of her first husband Bhola Singh, Smt. Mahan Kaur remarried with Hira Singh. From the union of Smt. Mahan Kaur and Hira, Singh, Gujjar Singh was born. Defendant Kewal Singh is the son of Gujjar Singh and he was sued through his natural guardian and mother Smt. Sito wife of aforesaid Gujjar Singh. The case of the Plaintiff is that she used to render services to Surmukh Singh deceased and out of love and affection, he executed a registered will dated 25.2.1959 (Exhibit P1), bequeathing his entire movable and immovable property in her favour. Plaintiff Smt. Kartar Kaur alleges that revenue mutation of succession of Surmukh Singh has been illegally sanctioned in favour of Kewal Singh son of Gujjar Singh and in this manner her rights to the property bequeathed by her uncle Surmukh Singh have been adversely affected. In fact, on the basis of natural succession as well as on the basis of Will dated 25.1.1959 (P1), she is the owner of the suit property.

The suit of the Plaintiff was contested by the Defendant on the grounds that during his life-time Surmukh Singh had mortgaged the suit property and it was redeemed by the Defendant on payment of the mortgage money by making payment to the various mortgagees. Kewal Singh Defendant set up a registered Will dated 5.1.1966 (Exhibit Dl) and asserted that Surmukh Singh had executed this Will in his favour while he was in sound and disposing state of mind and this is the last testament. The Will dated 25.2.1959 (P1), if any, in favour of Smt. Kartar Kaur Plaintiff stood automatically cancelled. He is the owner and in possession of the suit land on the basis of the Will (D1) dated 5.1.1996 and as such the suit of the Plaintiff is liable to be dismissed.

From the above pleadings of the parties, learned trial Court framed the following issues:

Whether Surmukh Singh deceased executed a genuine and valid Will dated 25.2,1959 in favour of the Plaintiff? If so, its effect? OPP

Whether Surmukh Singh deceased executed a valid and genuine Will dated 5.1.1996 in favour of the Defendant? If so, its effect? OPD

Whether the Court is within limitation? OPD

Whether the Plaintiff has got no locus standi to file the present suit? OPD

Whether the suit is not maintainable in the present form? OPD

Whether the suit is bad for non-joinder of necessary parties? OPD

Whether the suit land was lying mortgaged by Surmukh Singh deceased and has been released by Defendant? If so, for what amount and with what effect? OPD

Relief.

The parties led oral and documentary evidence in support of their case and vide judgment and decree dated 17.10.1978 the Court of Sub Judge IInd Class, Bhatinda, decreed the suit by holding that the Will (Exhibit P1) had been validly executed by Surmukh Singh while in sound disposing mind in favour of Smt. Kartar Kaur. Resultantly, issue No. 1 was decided in favour of the Plaintiff and against the Defendant. While deciding issue No. 2 the trial Court further held that Surmukh Singh deceased did not execute any valid and genuine Will dated 5.1.1996 in favour of Defendant Kewal Singh Moreover, this Will is surrounded by suspicious circumstances. This issue was decided against the Defendant. Issue No. 3 was decided by the trial Court in favour of the Plaintiff and the suit of the Plaintiff was held to be within limitation. Jssue Nos. 4, 5, 6 and 7 were also decided against the Defendant. Finally, the suit of the Plaintiff was decreed by the trial Court. The trial Court gave its reasons which are contained in Paras Nos. 7 and 8 of the judgment, while deciding issue No. 1 in favour of the Plaintiff. The trial Court also gave its elaborate reasons contained in Paras Nos. 9 to 16 of the judgment while disbelieving the Will (Exhibit D1).

Aggrieved by the judgment and decree of the trial Court, Kewal Singh Defendant filed the first appeal in the Court of Additional District Judge, Bathinda who vide the impugned judgment and decree dated 9.9.1982 set aside the judgment and decree of the trial Court and dismissed the suit of the Plaintiff-Appellant Smt. Kartar Kaur, by holding that the Will (Exhibit P1) dated 22.2.1959 had not been proved to be a genuine Will of Surmukh Singh, who, according to the first appellate Court, was not in sound disposing state of mind irrespective of the fact that the Will (P1) dated 25.2.1959 was registered. The first appellate Court also held that the Will dated 5.1.1966 executed by Surmukh Singh deceased in favour of Kewal Singh Defendant was, in fact, valid and genuine and it has been duly proved not only from the statement of Gurdial Singh, who was examined by the Plaintiff in order to prove her Will (Exhibit P1), but also from the statements of the scribe and the Sub Registrar if The first appellate Court also reversed the findings of the trial Court on issues Nos. 5,6 and 7, and finally the suit of the Plaintiff Smt. Kartar Kaur was dismissed. The reasons of reversal of the findings of the trial Court on Issue No. 1 are given in Paras Nos. 9 to 15 of the judgment and the reasons of upholding the Will (D1) are given in Paras Nos. 16 to 30 of the judgment. The findings on the other issues would depend upon the findings on issues Nos. 1 and 2.

I have the occasion to go through the reasons given by the trial Court as well as the first appellate Court in support of their concussions and I have also gone through the evidence which has been led by the parties in support of the Wills P1 and Dl.

I have heard Shri M.S. Khaira, Advocate, on behalf of the Appellant; and Shri J.R. Mittal, Sr. Advocate who appeared on behalf of Kewal Singh Respondent, and Shri A.K. Mittal, Advocate, on behalf of the added Respondents, as during the pendency of the litigation Kewal Singh has sold part of the suit property in favour of the clients of Shri A.K. Mittal, I would also like to make a mention that the appeal was argued at length by Mr. M.S. Khaira, Mr. J.R. Mittal and Mr. A.K. Mittal. Since it was a dispute between the two relations, a suggestion was given to the contesting parties for a compromise. Mr. H.S. Mann, Advocate, also appeared on behalf of Kewal Singh Respondent and Mr. Mann made a mention in the Court and sought adjournment, but his request was declined as the appeal was earlier argued by the counsel, including Mr. J.R. Mittal, Senior Advocate. The effort on the part of the Court for bringing a conciliation between the parties also failed. Hence this appeal is being disposed of on merits.

Before I will advert to the evidence led by the parties and before I discuss the reasons advanced by the first appellate Court in reversing the findings of the trial Court, first of all I would like to refer to the citation reported as Bhagya Wati v. General Public 1995 (1) RRR 145, which is an authority of the Division Bench of this Court, wherein the Hon''ble Judge of this Court have made an effort to consolidate the law with regard to the Wills. Para No. 6 of the judgment can be quoted with advantage:

Under the Act Will has been defined to mean a legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. Under the General Clauses Act will includes a Codicil making a voluntary posthumous disposition of property intending to take effect after the death of the testator. According to Halsbury''s Law of England, a Will or testament is a declaration in a prescribed manner of the intention of the person making it with respect to the matters which he wishes to take effect upon or after his death. A Will made for disposal of property of the testator after his death and of appointing an executor, for appointing a testamentary guardian, for exercising a power of appointment and for revoking or altering a previous Will. The essential characteristics of a Will are:

(a) There must be a legal declaration;

(b) Such a declaration must be with respect to the property of the (sic)elator and

(c) The declaration must be intended to operate after the death of the testator.

In order to hold a document to be a Will it has to be proved that the same is in conformity with the provisions as regards the execution and attestation as provided u/s 63 of the Act and executed by a person competent to make it. The Will must relate to the property of the maker which he intends to dispose of and if no reference is made to the disposal of the property, the document cannot be termed to be a Will. The declaration intended to take effect after the death of the testator impliedly means that declaration should not be meant to take effect immediately and if it does so then it is not a Will. The testamentary document can be revoked by the testator during his life- time. A Will can be executed in any form but to be effective it is required to be signed and attested by the witnesses as required under the Act. No specific form or language is required to be applied while executing the Will. As the Will diverts rule of natural succession, its execution is required to be satisfactorily proved in accordance with the provisions of the law and keeping in view the judgments delivered by the apex Court and the various High Courts in the country. The origin of the Will can be referred to ancient times as it is shown to be in existence as in Babylon Assyria. It was considered that the idea of disposition by Will was the gift of Rome''s expiring civilization to Rome''s rude conquerors, awakened at last, by closer contact with that civilization to a better life. The laws prevalent in various civilized countries concede to the owner of the property the right of determining by Will to whom the effects which he leaves behind him shall pass. Such a right, is however, subject to statutory restrictions imposed, if any. It is common knowledge that instincts and affections determine the Will lead them to decide for those who are nearest to him in kindred and who in life has been the object of his affection. It is reasonably presumed that a man leaving the world naturally distribute his property among his children or nearest relatives on the judged opinion based upon his experience in life and not being influenced by extraneous considerations. The concept of making the Will was unknown under the ancient Hindu Law as to name equivalent or pseudonymous to Will has been traced either in Sanskrit or in the vernacular languages. The absence of testamentary disposition of the property under the Hindu Law, can be attributed to the joint family system and the custom of adoption prevalent amongst the Hindus. The old joint Hindu family system was considered and perhaps it was the main reason to ignore the testamentary disposition. However, with the growth, development and change of law regarding succession, the power of Hindu to create interests in property during his life time leads to the power to create interests in the property after his death. From a pretty long time the testamentary power of a Hindu has been recognised and he is authorised to make Will regarding his self acquired property. Such a right has got statutory sanction after the passing of the Act. Before the passing of the Act, no part of the coparcenary property could be disposed of by making a Will which was restricted only to self acquired property. However, Section 30 of the Hindu Succession Act now enables the Hindus to dispose of by Will his share in the coparcenary property at the time of his death. The Act has consolidated the law applicable to intestate and testamentary succession of India and is applicable to all the testaments made in the country subject to the exceptions made in Sub-section (1) or Section 58 of the Act. Section 63 of the Act regulates the execution of the Will providing that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his directions. Signature or marks 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. Such a Will is required to be attested by two or more witnesses each of whom is required to see the testator signing or affixing his mark to the Will or see some other person signing the same, in the presence and by directions of the testator or should have received a personal acknowledgment of his signature from the testator, or of the signature of such other person; and each of the witnesses should sing the Will in the presence of the testator. It is, however, not necessary that more than one witness be present at the same time, and no particular form of attestation is necessary.

In this very celebrated judgment the Hon''ble Judges (hen again summed up the proposition of law with regard to the proper execution of the Will in Para No. 19 of the judgment, which is reproduced as follows:

From the judicial verdicts noted in the judgment and various other pronouncements relied upon by the counsel for the parties, the position which emerges for holding proper execution of the Will is that:

(a) the testator must have a disposing mind free from all extraneous influences with sound mental mind;

(b) the testator is presumed to be sane having a mental capacity to make a valid Will until contrary is proved;

(c) the Will should be executed in accordance with the provisions of the Act as incorporated in Section 63 of the Act read with Sections 67 and 68 of the Evidence Act. In other words, the testator should have signed or affixed his mark to the Will in the presence of the two witnesses who are required to see the testator signing or affixing his mark on the Will and each of the witnesses should sing the Will in the presence of the testator;

(d) the onus of proof of the Will is on the propounder or beneficiary of the Will;

(e) the existence of suspicious circumstances makes the onus of proof very heavy and such circumstances are required to be removed by the profounder before the document is accepted as a last Will of the testator;

(f) the mode of proving the Will does not ordinarily differ from that of proving any other document except the special circumstances as incorporated in Section 63 of the Act; and

(g) in order to ascertain the free disposing mind free from extraneous considerations, the whole of the attending circumstances in a particular case are required to be taken note of.

and I would like to examine the evidence of the parties in the light of the ratio contained in this judgment which is based on several authorities of the Hon''ble Supreme Court, inter alia, the authorities of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, ; Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, . Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, ; Ramchandra Rambux Vs. Champabai and Others, ; and Kalyan Singh v. Smt. Chotti and Ors. AIR 1990 S.C. 397. I would also like to quote briefly the citation of the Hon''ble Supreme Court reported as Rabindra Nath Mukherjee and Anr. v. Panchanam Banerjee (dead) by L.R''s and Ors. 1995 (3) P.L.R. 594, wherein it was held that the deprivation of natural heirs by the testatrix should not raise any suspicion, because the whole idea behind execution 6f Will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of Will, of course, it may be that in some cases they are fully debarred and in other only partially. In this authority it was also held that when witnesses to the document are interested but the Sub Registrar certifies that the Will had been read over to the executor who on doing so admitted the contents, the fact that the witnesses to the document are interested loses significance. The case of the Plaintiff throughout was that Surmukh Singh executed registered Will dated 25.2.1959 out of love and affection. In this regard the written statement of the Defendant is very relevant because it would throw light as to whether there was any compelling necessity on the part of the first appellate Court to declare the Will dated 25.2.1959 as not proved. In Para No. 4 of the written statement the stand of the Defendant was that the Will dated 25.2.1959, as alleged by the Plaintiff stood cancelled by the latest Will dated 5.1.1966. This averment in the written statement impliedly admits that there is a Will dated 25.2.1959 in favour of the Plaintiff but it stood cancelled due to the execution of the registered Will dated 5.1.1966. Here I would again like to revert to show the relationship of the Plaintiff vis-a-vis Surmukh Singh deceased. I have mentioned above that Surmukh Singh and Narain Singh were real brothers and they were born to Smt. Mahan Kaur from the lions of her first husband Bhola Singh. Narain Singh died long back leaving behind his daughter Smt. Kartar Kaur. Surmukh Singh was issueless and in these circumstances the natural curiosity of Surmukh Singh would always be to Will away the property in favour of Smt. Kartar Kaur. This fact can also be not lost sight that Surmukh Singh inherited the property from Narain Singh, being his brother, under the custom, and it must be weighing in his mind that this property must go to Smt. Kartar Kaur.

On the contrary, the legatee of the Will is Kewal Singh, who was only a child of 3 years at the time of the execution of the Will (D1). After the death of Bhola Singh, Smt. Mahan Kaur remarried with Hari Singh and from this union Gujjar Singh was born. So in this manner Gujjar Singh and Surmukh Singh were uterine brothers. It is also a fact that Surmukh Singh when executed the Will in the year 1959 did not think it proper to bequeath the property in favour of his uterine brother Gujjar Singh. Whether in these circumstances it is plausible for Surmukh Singh to bequeath his property in favour of Kewal Singh - a child of three years - in the year 1966? It is also an established fact that the Will (Exhibit P1) was executed by deceased Surmukh Singh when he was in the hospital. It was scribed by a lawyer, attested by a doctor and registered in the. office of the Sub Registrar where the testator was taken on the cot. Unfortunately, the testator did not die in the year 1959 itself but he survived for a period of more than 7 years as it is the common case of the parties that Surmukh Singh died somewhere in the year 1966. In these circumstances, in my opinion, it is fallacious and erroneous approach on the part of the first appellate Court when it held that deceased Surmukh Singh was not in sound disposing mind at the time of the execution of the Will Exhibit P1.

Now it is to be seen whether the execution of the Will (Exhibit P1) has been proved or not. In order to prove this issue, Plaintiff Kartar Kaur has examined Shri Mulkh Raj (P. W. 1) who is scribe of the Will (P1), Dr.Diddar Singh (P.W.2), Shri Gurdial Singh, Numberdar (P. W.3) who are the attesting witnesses of the Will, The other attesting witnesses Dasaundha Singh and Jita Singh, Numberdars, have died. Plaintiff Smt.Kartar Kaur appeared as her own witness as P.W.4. She deposed that her uncle-Surmukh Singh executed the Will in her favour in the presence of Dr. Didar Singh, Gurdial Singh, Dasaundha Singh and Jita Singh. She also stated that Surmukh Singh thumb marked in the presence of the witnesses who signed the Will and all of them appeared before the Sub Registrar for registration. The fact cannot be lost sight that itigation between the parties started after several years of the death of Surmukh Singh, he present suit was instituted in the year 1976. The witnesses also appeared after a apse of several years of the execution of the Will (Exhibit P1) and the trial Court has rightly held that if some discrepancies with regard to the execution of the Will had occurred, allowance must be given to these witnesses. In this regard it will be useful for me to refer to the statement of Gurdial Singh. To me he is an independent witness. He is not interested either in the Plaintiff or in the Defendant. He has given the clear picture with regard to the execution of the Wills P1 and D1 because this witness is the attesting witness to both the Wills and due weight must be given to his statement Gurdial Singh, while appearing as P. W. deposed that he knew Surmukh Singh son of Bhola Singh as he belonged to his Patti. This witness is a Nubmerdar and he has identified his signatures on the Will (P1). He deposed that Surmukh Singh executed the Will (P1) in favour of Smt. Kartar Kaur and it was scribed by Shri Mulkh Raj, Advocate further he deposed that the contents of the Will were read over and explained to the testator, who thumb marked the same in token of its correctness after understanding its contents. Also it has been deposed by this witness that Dassaundha Singh, Jeeta Singh and Dr.Didar Singh were present. Surmukh Singh was in his senses at the time of the execution of this Will and no pressure was exerted upon him. Gurdial Singh also deposed that the deceased told him that he wanted to execute the Will in favour of his niece. It was executed at Mansa. After the execution, the parties went to the office of the Tehsildar (Sub Registrar) where the Will was presented. The Sub Registrar read out the contents of the Will to the testator and both the identifying witnesses also signed in the presence of the Sub Registrar. The witness has confidently deposed the reasons of his presence in the hospital. He further admitted that Smt. Kartar Kaur and her husband were also present in the hospital. He was not in a position to tell who approached the lawyer Shri Mulkh Raj for the purpose of scribing the Will. He further deposed that Surmukh Singh deceased was put on a cot and on the cot he was brought to the Tehsil premises at the time of the registration of the Will. It is not established from the statement of Gurdial Singh that Smt. Kartar Kaur and her husband took active part or prevailed upon the wish of the deceased for the execution of the Will (Exhibit P1). Mere illness of a man is no ground to come to the conclusion that he did not execute the Will in sound disposing mind. Surmukh Singh was suffering form anemia, meaning thereby deficiency in blood, but it is not such a disease that the man must be expecting his death very shortly. I have already stated above that it is the common case of the parties that Surmukh Singh survived for 7 years.

The testimony of Dr. Didar Singh cannot be rejected on the plea that he was remotely related to the deceased or that some of the land of the deceased was mortgaged with his relations. Equally it can be said that Surmukh Singh thought it proper to be hospitalised at Mansa, so that he may take the benefit of services of his relations, like Dr. Didar Singh. To proceed further Shri Mulkh Raj, Advocate, appeared as P.W. 1. He has also stated in support of the Will (P1). Dr. Didar Singh appeared as P.W.2. I have gone through the statements of both the witnesses. From the statements of these witnesses it is not established that Smt. Kartar Kaur and her husband prevailed upon the wishes of the testator to execute the Will. Even the Defendant admitted execution of the Will (P1) in favour of Smt. Kartar Kaur. No suspicious circumstances are surrounding the Will (Exhibit P1) and in the light of the statements of Mulkh Raj, Dr. Didar Singh, Smt. Kartar Kaur and Numberdar Gurdial Singh it is fully established that this Will (P1) has been proved to be the last testament of the deceased.

Now I would like to discuss the statement of Gurdial Singh further in order to establish whether it can be said that the Will (Exhibit D10 has been proved. Rather my finding is that this Will has been created by Gujjar Singh, who took active part in the entire episode. The witness stated that he identified his signatures on the Will (Exhibit Dl). Later on Surmukh Singh executed the Will in favour of Kewal Singh son of Gujjar Singh. Gurdit Singh Numberdar was the second attesting witness. This Will was executed at Tehsil Bathinda. This witness deposed that he did not know whether Surmukh Singh executed the Will (Dl) in favour of Kewal Singh of his own volition. (Mainu Nahin Pata Ke Usne Apni Marji Nal Karai Hove). Gurdial Singh also stated that he was brought alongwith Gurdit Singh in a car. He and Gurdit Singh appeared before the Tehsildar. He did not remember if Surmukh Singh signed the Will or not. At one point of time Gurdial Singh sated that the Will (Dl) was executed by Kartar Singh, Arji Navis. He was present when said Kartar Singh scribed the Will and he along with Gurdit Singh attested the Will in front of Surmukh Singh and thereafter they appeared before the Tehsildar, where it was thumb marked. This witness was re-examined by the Plaintiff with regard to the Will (Exhibit D1) and he categorically admitted that Gujjar Singh brought him (Gurdial Singh), Surmukh Singh and Gurdit Singh in a car to Bathinda. Gujjar Singh incurred the taxi expenses. When Surmukh Singh was brought in the car to Bathinda, his health was not good and he was indisposed. (Usde Hosh Hawas Changi Tarah Thik Nahin San). The witness further deposed that when the Will was scribed from Kartar Singh. Surmukh Singh remained present inside the car and it was got executed by Gujjar Singh. Surmukh Singh thumb marked the Will while lying inside the car and Gujjar Singh paid the expenses of the scribe. Also it may be mentioned here that there is no specific mention of the cancellation of the Will dated 25.2.1959 (Exhibit P1) in the Will Exhibit Dl. This shows that had Surmukh Singh been in proper senses at the time of the execution of the Will (Exhibit D1), he would have given instructions to the scribe that he wanted to disinherit Smt. Kartar Kaur in whose favour the Will (Exhibit P1) had been executed. No doubt Smt. Kartar Kaur was married and was residing in the house of her in-laws, yet this circumstance alone is not sufficient to hold that Surmukh Singh had no love and affection towards her. It cannot be lost sight that Smt. Kartar Kaur is the daughter of Narain Singh deceased brother of Surmukh Singh, whereas Kewal Singh is the son of the uterine brother of Surmukh Singh. The other attesting witness of the Will (Exhibit D1) has not been examined by the Defendant. He has been given up. Now it is to be seen whether from the statement of Gurdial Singh it is established that the Will (Exhibit D1) has been executed by Surmukh Singh while in a sound disposing mind and whether the suspicious circumstances surrounding the Will have been successfully removed by the Defendant. The answer of this Court to the said question is in the negative. Faced with this difficulty, learned Counsel for the Defendant and the added Respondents drew my attention to the statements of the scribe and the Sub Registrar so as to bring them to the ambit of attesting witnesses in order to prove due execution of the Will. D.W.5 is Shri Bakhshish Singh, retired Tehsildar, who was the relevant Sub Registrar when the Will (Exhibit D1) was registered. In the examination-in-chief he made effort to prove the formalities required to be taken for the purpose of registering a document, but in the cross-examination the witness admitted that heb did not know Surmukh Singh personally, but he identified Gurdial Singh and Gujjar Singh, who he knew personally. Thus from the statement of Bakhshish Singh it stands established that he could not be treated as the attesting witness of the Will. D.W.8 is Kartar Singh, who is the scribe of the Will and he has also admitted in the cross-examination that he did not know Surmukh Singh personally and that the deceased never earlier approached him for scribing any document. Effort was also made to take the assistance of Shri K.C. Jaidka, handwriting expert, (D.W.7), who has proved the disputed and standard thumb impressions of Surmukh Singh, but his report can only be treated as corroborative piece of evidence, provided it is established that Surmukh Singh executed the Will (Exhibit D1) while in sound disposing mind and the propounder of the Will has been able to remove all the suspicious circumstances surrounding the Will. So far as the position of law is concerned, it is Well established that the identifier or the registering officer is not an attesting witness and in this regard reliance can be placed on M. L. Abdul Jabbar Sahib Vs. M. V. Venkata Sastri and Sons and Others, , wherein it has been held as follows:

The word "attested", occurs in Section 3 T.P. Act, as part of the definition itself. To attest is to bear witness to a fact. The essential conditions of a valid attestation u/s 3 of the T.P. Act are:(1) Two or more witnesses shave seen the executant sign the instrument or have received from him a personal acknowledgement of his signature; (2) with a view to attest or the bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g. to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.

Reliance can also be placed on Dharam Singh Vs. Aso and another, , wherein it has been that the Registrar could not be statutory attesting witness. It is not established on the record that after the execution of the Will (Exhibit P1) in favour of Smt. Kartar Kaur, Surmukh Singh had strained relations with her so as to exclude her from her natural inheritance and this itself amounts to a suspicious circumstances surrounding the Will (D1).

Learned Counsel for the Respondents submitted that, in fact, Smt. Kartar Kaur lost interest after the execution of the Will (P1) in her favour, and for that reason she did not serve the deceased who was, admittedly, residing in his village Maur Kalan, and he was looked after by the family of Gujjar Singh, and, therefore, it was natural anxiety on the part of deceased Surmukh Singh to keep the property in the male succession in preference to Smt. Kartar Kaur. This argument has been deeply scrutinised by me, but I am not in a position to subscribe myself to this argument because it cannot be lost sight of that Smt. Kartar Kaur is a lady and she was supposed to live in the house of. her in-laws and could not afford to live for all times to come in the house of her uncle after the execution of the Will (Exhibit P1). It is nowhere in evidence that Smt. Kartar Kaur never visited her uncle after the execution of the Will (Exhibit P1). Further had Surmukh Singh wanted to give the property in the family of Gujjar Singh, he could have executed the Will at the first instance in favour of Gujjar Singh in the year 1959. It is not in evidence that Surmukh Singh had any strained relations with uterine brother Gujjar Singh at any relevant time or that he wanted to prefer Smt. Kartar Kaur to Gujjar Singh. Rather the anxiety of Surmukh Singh was to bequeath the property to his real niece Smt. Kartar Kaur, who is none else but the daughter of Narain Singh, who was his real brother. Mere fact that Gujjar Singh performed the last rites of the deceased, is not a conclusive circumstance to hold that the Will (Exhibit Dl) has been validly executed or that it contains the last wish of the deceased. After all Gujjar Singh was the uterine brother of Surmukh Singh and it has been seen in our society that male members invariably perform the last rites of the deceased. Simply that Smt. Kartar Kaur did not perform the last rites of the deceased, is no ground to jump to the conclusion that the Will (Exhibit P1) is surrounded by suspicious circumstances.

Now I will touch briefly the reasons advanced by the first appellate Court for discarding the Will (Exhibit P1) and for relying the Will (Exhibit Dl). The main reasons which has been given while discarding the Will Exhibit P1 by the first appellate Court is that Surmukh Singh was admittedly in the hospital at the time of the execution of the Will Exhibit P1 and that it is attested by Dr. Didar Singh and that Smt. Kartar Kaur and her husband were also present and that Surmukh Singh was brought to the office of the Sub Registrar on a cot; and, therefore, all the circumstances proved that this Will had not been duly proved and that it is surrounded by suspicious circumstances. To my mind, the reasons advanced by the first appellate Court are not cogent. I have tried to explain above the entire background and I cannot lose sight of the fact that the blood is always thicker than the water. So far as the reasons advanced in support of the Will (Exhibit Dl), given by the first appellate Court, are concerned, those are again not convincing for me. Those reasons are more n the shape of conjectures. Rather it is established on the record that no marginal witness was summoned by the Defendant to prove the Will (Exhibit Dl). Rather Gurdial Singh appeared as P.W.3. He supported the Will Exhibit P1, but ha snot wholly supported the execution/attestation of the Will (Exhibit Dl). Sub Registrar Bakhshish Singh is not the attesting witness. It is also not established from the statement of Gurdial Singh that Surmukh Singh was in sound disposing state of mind at the time of the execution of the Will in question. It is also proved on the record that the Will (Exhibit Dl) is unnatural in the sense that no reasons for disinheriting the testator''s lawful heir, i.e., Smt. Kartar Kaur, were recited. It is also proved on the record that Gujjar Singh, father of Kewal Singh legatee, played a predominant role in the execution of the Will (D1) when he manipulated everything. Even the case law which has been relied upon by the first appellate Court is not applicable to the facts in hand in view of the case law propounded by the Hon''ble Supreme Curt and referred to in this judgment. The first appellate Court aid too much stress visa-vis the conduct of Smt. Kartar Kaur by holding that there was no reliable evidence-to prove that she used to serve the deceased or that she was on visiting terms with him. After considering the pros and cons of this case in the light of the evidence led by the parties, I have conic to the conclusion that the Will (Exhibit Dl) was scribed when the deceased Surmukh Singh was not in sound and disposing state of mind. Gujjar Singh, father of Kewal Singh Defendant-Respondent took active part in the execution of the Will.. He was the main manipulator of the evidence. The deceased was brought in the car along with the witnesses and, in fact, everything was done while sitting in the car. The scribe and the Sub Registrar were not the attesting witnesses. There was no occasion on the part of Surmukh Singh to disinherit his niece Smt. Kartar Kaur, who, otherwise, was the natural heir, being the daughter of real brother of Surmukh Singh. Resultantly, 1 reverse the findings of the first appellate Court on issues Nos. 1 and 2 and affirm the findings of the trial Court on these issues.

With the reversal of the findings of the first appellate Court on issues Nos. 1 and 2, it has to be held that the suit of the Plaintiff was within limitation as she has claimed possession on the basis of title by virtue of the Will (Exhibit P1). Even otherwise she was the natural heir of Surmukh Singh. The sit has been filed within 12 years after the death of Surmukh Singh. The sit was also maintainable as Smt. Kartar Kaur wanted to take the possession of the property from the hands of unlawful person, who claims himself to be the owner of the property by virtue of the Will (Exhibit D1). The suit is also hot bad for non-joinder of necessary parties. The findings of the first appellate Court on those issues which have been decided against the Plaintiff-Appellant, are also liable to be reversed. Defendant Kewal Singh had no locus standi to redeem the property mortgaged by Surmukh Singh deceased during his life-time as he did not become the owner of the property by virtue of the Will (Exhibit D1). No right on equity of redemption has passed in his favour. It has been in Bhag Singh v. Mst. Shanti AIR 1952 Pep 74, that when a person redeems a mortgage without any right and according to law, he cannot be subrogated to the mortgagees. Such a person cannot be subrogated to the mortgagees. Such a person cannot be regarded as a transferee from the mortgagee.

In view of my above discussion, I allow this appeal, set aside the judgment and decree of the first appellate Court and restore the judgment and decree of the trial Court and hold that the trial Court was justified in granting a decree for possession of the land measuring 130 Kanals 18 Marlas, fully described in the head note of the plaint, in favour of the Plaintiff-Appellant and against the Respondent. The added Respondent shall also be bound by the decree of the trial Court as they had acquired interest through Kewal Singh during the pendency of the suit itself. These added Respondents would be governed by the principle of lis pendens. If any construction had been made by the added Respondents over the land purchased by them, they are bound to remove it at their own expense. They have already given an undertaking at the time of becoming party to the appeal that they would be raising the construction at their own risk. There shall be no order as to costs in the present appeal.