Valliammal vs Rakkia Gounder and Others

Srinivasan, J.—The only question before me is whether the Will dated 24.10.1973, on which the plaintiff/appellant places reliance, is

properly proved. While the trial Court granted a decree in favour of the plaintiff on the basis of the Will, the appellate Court has reversed the same.

The appellate Court has held that the plaintiff not having examined any of the attestors to the Will, the requirement of Section 68 of the Evidence

Act has not been satisfied. Consequently, the appellate Court held that the Will is not proved and dismissed the suit.

It is contended by learned Counsel for the appellant that the Sub-Registrar, who registered the Will has been examined as P.W. 4 in the case

and he should be treated as an attestor for the purpose of Section 68 of the Indian Evidence Act. I cannot agree with this contention. The Sub-

Registrar has not done anything excepting to sign the registration endorsement in the document, which he is bound to make under the provisions of

the Registration Act. He ascertains whether the person who presents the document for registration had executed the same and on getting

affirmative reply makes an endorsement to that effect and signs the registration endorsement in the documents. By no stretch of imagination can it

be said that the Sub-Registrar should be treated as an attestor. It is well known that there should be animus attestandi in order to treat a particular

person as an attesting witness. The question has been considered at length by the Supreme Court in M. L. Abdul Jabbar Sahib Vs. M. V. Venkata

Sastri and Sons and Others, . There is no necessity to refer to the said judgment in detail. The principle laid down in that case will apply to the

present case and on that basis I hold that P.W. 4 is not an attesting witness and the requirements of Section 68 of the Indian Evidence Act are not

satisfied by examining P.W. 4.

Learned Counsel for the appellant places reliance of the judgment of the Punjab and Haryana High Court in Jarnail Singh Vs. Narain Singh and

Others, . In that case Gupta, J., observed that Sub-Registrar had deposed that the Will was read over to the testator, who admitted it to be

correct and in his presence and in the presence of other persons, the testator thumb-marked the endorsement. It was also deposed by the Sub-

Registrar that the witnesses had already attested the endorsement and the same was signed by him also. That circumstance was considered by

Justice Gupta as sufficient to treat the Sub-Registrar as an attesting witness within the meaning of Section 68 of the Indian Evidence Act. With

respect, I do not agree with the view taken by the learned Judge. The learned Judge has not referred to the judgment of the Supreme Court in M.

L. Abdul Jabbar Sahib Vs. M. V. Venkata Sastri and Sons and Others, . The learned Judge has not referred to the provisions of Section 63 of the

Indian Succession Act. The deposition of the Sub-Registrar, as referred to by the learned Judge in his judgment, will not satisfy the requirement of

Section 63 of the Indian Succession Act. It was not possible to hold that the Will was duly attested in accordance with the provisions of Section

63 of he Indian Succession Act and a valid one. Thus on two grounds the judgment of the Punjab and Haryana High Court cannot be taken to be

correct.

The next question will be whether the admission of execution by the executant before the Sub Registrar would amount to an admission within the

meaning of Section 70 of the Indian Evidence Act. It has been held by a Division Bench of this Court in E.Su. Na. Sheikh Davood Rowther and

Others Vs. N.R.M.N. Ramanathan Chettiar and Others, , that for the purpose of Section 70 of the Indian Evidence Act, admission should have

been made either in the pleading or during the course of the trial of the suit in which the question arose for consideration. The admission, even if it

had been made before the Sub-Registrar at the time of registration will not fall within Section 70 as it is not an admission made in the course of the

suit. Similar view is taken by the Bombay High Court in Timmavva Dundappa v. Channava Appaya AIR 1948 Bom. 322

Hence, the contentions put forward by the appellant are negatived and consequently, this second appeal is dismissed. However, there will be no

order as to costs.