Gulab C. Gupta, J.
1. This is defendants' first appeal under Section 96 of the Civil P.C. against the judgment and decree dated 21-11-1985 passed by Shri K. C. Agarwal, First Additional Judge to the Court of District Judge, Sagar in civil suit No. 24-A/1982, allowing the respondent's suit for declaration and directing the appellants to hand over the vacant possession of the suit house to the respondent.
2. The dispute between the parties is about houses Nos. 359 to 374 situate at Itwari Tori, Sagar. Appellant Abdul Gafoor claimed ownership of the said house on the basis of will dated 28-11-1956 (Ex. D/1) executed by one Munnilal who was a eunuch, in his favour. The said Abdul Gafoor sold the suit house to appellants Nos. 1 and 2 by a registered sale deed dated 19-9-1977. The case of the respondent-plaintiff is that he is a eunuch and was a Chela of Munnilal, who died some times in 1957. Munnilal admittedly was thechela of Nasiban, another eunuch. According to the respondent, eunuchs are a class by themselves and follow Guru-Chela system under which the property in the hands of Guru passes on to his chela. According to the respondent, a Guru in his community cannot transfer the property in his hands to any one outside the community, According to the respondent-plaintiff, Munnilal had received the suit properties from his Guru Nasiban in accordance with the aforesaid custom. His further case is that the said Munnilal executed a will in his favour on 6-9-1956 (Ex. P-l) and also got the same registered. The respondent, therefore, claimed ownership of the suit properties on the basis of this will and submitted that the so called will dated 28-11-1956 (Ex. D-l) in favour of Munnilal was forged and fabricated and otherwise of no legal effect, inasmuch as Munnilal being a eunuch could not transfer the suit properties to appellant Abdul Gafoor who was not a eunuch. The respondent, therefore, claimed a declaration of his title over the suit houses and also that the will dated 28-11-1956 and sale deed dated 19-9-77 are illegal and void. Appellant Abdul Gafoor admitted that Munnilal was a eunuch but denied that he had no authority to transfer the property to a person who was not eunuch. According to him, Munniial was entitled to execute the will about the suit property like any other Muslim. He, therefore, claimed that will dated 28-11-1956 (Ex. D-l) was legal and valid. The other two appellants claim to be bona fide purchasers of the properties. The learned trial Judge, on the basis of evidence adduced by the parties, held that there was a custom among eunuchs under which the property of a eunuch could be transferred only to another eunuch of the community and not to a person outside the community. The learned trial Judge further held that Guru-Chela system was prevalent amongst eunuchs under which the property in the hands of Guru was inherited by Chela. On these findings he held that will dated 28-11-1956 (Ex. D/1) was illegal and void. That is how the suit was allowed and declaration given.
3. The submission of the learned counsel for the appellant, in the main, is that Munnilal being Mohammadan, was entitled to executehis will like any other Mohammadan and his this right could not be limited in any manner. According to the learned counsel, there could be no custom contrary to Muslim Law and no such custom could be recognized. It is also submitted that even if it was to be held that a custom like it was not contrary to Muslim Law, existence of the said custom has not been proved in accordance with law. Learned counsel for the respondent, however, submitted that the custom as pleaded was neither contrary to any law nor was otherwise unreasonable. The said custom according to the learned counsel is proved by evidence on record. The learned counsel further submitted that the will dated 28-11-1956 (Ex. D-I) was not proved in accordance with law and, therefore, no further question should arise in the case.
4. Since legal validity of will (Ex. D-l) will go to the root of the matter, it may be examined first. A perusal of this will indicates that Munnilal was described as a Chela of Nasiban. According to the will, he was suffering from cancer since last about 4-5 years and had been treated at Patna, Gwalior and Bhopal, without any cure. The document indicates that several thousand rupees were spent by Abdul Gafoor and Munshi Noor Mohammad s/o Sheikh Muneer and both of them were still taking care of Munnilal. Document further indicates that Munnilal had executed a will in favour of Kamla alias Badshah who belongs to his community but the said person had stopped rendering any service to him after the will and did not give any financial help during the illness. Munnilal has, therefore, cancelled the will in favour of said Kamla alias Badashah and had willed his properties in favour of Abdul Gafoor and Munshi Noor Mohammad. The Document has been written by one Chhote Khan, a retired head constable. It purports to be bearing thumb impression of Munnilal. It has been attested by Nathuram, Panchamlal and Karim. Of these three witnesses, father's name and address of Nathuram and Panchamlal are written but Karim's father name and address is not given. Though the document was written on 28-11-1956, it has been registered on 8th March, 1958 before the Sub-Registrar,Sagar. There is no dispute that Munnilal had died by then. There is, however, endorsement by the Sub-Registrar that he was satisfied on the basis of evidence of Chhote Khan, Karim Khan, Nathuram and Panchamlal that the will was executed by Munnilal son of Nasiban.
5. Section 63 of the Succession Act, 1925 provides for execution of a will. According to this provision, (i) the testator shall sign or shall affix his mark to the will, (ii) signature and mark of the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will, and (iii) it shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will, and each of the witnesses shall sign the will in the presence of the testator. According to this provision it is not necessary that more than one witness be present at the same time, and no particular form of attestation is necessary. These requirements are clearly stated in Subudhi v. Murthy Raju, AIR 1961 Orissa 180, Chinna Pullappa v. Chinna Bayanna, AIR 1962 Andh Pra 54 and Mst. Gori v. Munshi Ram, AIR 1956 Punjab 145. It was clarified that the law requires that the provision of Section 63 should be complied with. This compliance should be proved either by means of oral evidence or in any other manner. Attestation by witnesses is not an empty formality. In Onkar Pershad v. Jagdish Pershad, AIR 1952 Punjab 237 it was held attesting is more than merely signing on the will. It means signing a document for the purpose of testifying to the signature of the executant. Therefore, even if a person sees the testator sign and signs the will after seeing the testator sign and in the presence of the testator, he would not be an attesting witness unless he puts his signature on the will animo attestandi. In Dulhia Ful Kueri v. Moti Jharo, AIR 1972 Patna 214 it was, however, held that mere signature towards the end of an instrument or somewhere on the instrument without any explanation are quite sufficient to show that the persons put their signatures by way of saying that they had seen the document being executed or had received an acknowledgment. It is not necessary for them to state on the document that they put theirsignatures in presence of the testator. In Girja Datt v. Gangotri Datt, AIR 1955 SC 346 it was observed that it cannot be presumed from the mere signatures of two persons appearing at the foot of the endorsement of registration of a will, that they had appended their signatures to the document as attesting witnesses. The Court held that Section 68 of the Evidence Act should be complied with in order that those two persons might be treated as attesting witnesses. This is also the view of the Supreme Court in H. Venkatachala v. B.N. Thimmajamma, AIR 1959 SC 443, Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529. In Girja Datt's case (supra), it was specifically stated that in order to prove the due attestation of the will the propounder of will has to prove that the witnesses saw the testator sign the will and they themselves signed the same in the presence of the testator.
6. There is a good deal of judicial authority to hold that it is for the propounder to prove the will and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus see Shashi Kumar's case (supra), Pushpavati v. Chandraja Kadamba, AIR 1972 SC 2492, Jaswant Kaur v. Amrit Kaur, AIR 1977 SC 74 and Smt. Indu Bala v. Manindra Chandra, AIR 1982 SC 133.
7. Section 68 of the Evidence Act, according to the Supreme Court is attracted to prove execution of the will. This provision requires examination of at least one attesting witness for the purpose of proving its execution. In the absence of examination of such a witness, the will would not be permitted to be used in evidence. A combined reading of Section 68 of the Evidence Act and Section 63 of the Succession Act, 1925 would, therefore, require at least one attesting witness to be examined and the said witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses has signed the will in the presence of the testator. In Doraiswami v. Rathnammal, AIR 1978 Mad 78 the only living attesting witness denied his testation on the will and the otherwitness did not depose having seen the executor signing the will. It was, therefore, held that the execution of the will was not proved. Under the circumstances, it will be the burden of the appellant to show by satisfactory evidence that the will (Ex. D-l) was signed by Munnilal who at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of disposing and put his thumb mark to the document of his own free will. The document (Ex. D-I) would not be used as evidence unless one attesting witness at least has been called for the purpose of proving its execution. This being the legal requirement, the appellant must satisfactorily prove the same to succeed in the appeal. The facts of the case may, therefore be examined to ascertain whether the aforesaid legal requirements remain satisfied.
8. The contents of the will (Ex. D-l) have been noticed earlier. It has also been noticed that Chhote Khan was the scribe of the will. He has, however, not been examined as a witness. It has also been noticed that Nathuram, Panchamlal and Karim have signed this will as witnesses. There is nothing in the will to indicate that they have seen Munnilal putting his thumb mark on this will. Of these three, only Karim Bhai (DW i) has been examined. According to him, Munni Lal had executed a will in favour of Abdul Gafoor and Noor Mohammad. He states that Chhote Khan wrote the will and read over the same to Munnilal who did not object to it. According to him, one Nathu Rathor, a barber. Moor Mohammad, Abdul Gafoor and Chhote Khan were also present at that time. He deposes that he signed as a witness. He has not been able to identify his signature on the document as according to him, he has become blind and was unable to see. Surprisingly this witness does not say that Munnilal put his thumb impression on the document, though he states that Munnilal did not object to the will. From his statement in the examination in chief, it appears that will was prepared by Chhote Khan, retired head-constable and then read over to Munnilal who did not object to it. In cross-examination, he denied the knowledge as to who had advised writing ofthe will (para 4). He however stated that while the will was being written, Munni Lal was sitting with his head bandaged, though he was not restless. He has also stated that he went in the Masjid on invitation from Chhote Khan. He did not know as to who had brought paper for writing. He did not remember whether it was written on plain paper or stamp paper. He was shown the will (Ex. D-l) which was also read over to him but was unable to say whether it was the same. He does not remember whether Munnilal signed in his presence. The following sentence in para 5 of his cross-examination is relevant.
^^eq>s /;ku ugh gS fd eqUuhyky us olh;r ukekij nLr[kr fd, Fks ;k ughaA**
Karim (DW 1) being the only witness, should have proved that Munnilal has put his thumb impression on document (Ex. D-I) in his presence and he had attested the same as a witness. Unfortunately, he does not say anything about the thumb mark of Munnilal. He does not even remember whether Munnilal had signed. Since the burden of proving thumb impression on Ex. D-l being of Munnilal was on the appellant Abdul Gafoor, Karim (DW 1) should have stated about it in his examination-in-chief. Not only that he does not say anything in the examination-in-chief, but he is not able to recall anything about it when asked in cross-examination. Under the circumstances the evidence of this witness does not satisfy the requirements of Section 68 of the Evidence Act, inasmuch as the only attesting witness examined in the court does not prove that the thumb mark on will (Ex. D-1) is that of Munnilal or that Munnilal put his thumb mark in his presence. In this view of the matter, prohibition of Section 68 of the Evidence Act would disentitle this court to take will (Ex. D-l) into consideration. It is true that Abdul Gafoor as D. W. 2 has, in his statement (Para 1) stated that Munnilal and witnesses put their signatures on the document in his presence. But his evidence is of no legal effect as he is not an attesting witness. Then even Abdul Gafoor (D W 2) does not say that Munnilal put his thumb impression on the will. He only states that Munnilal and witnesses signed in his presence. There is vastdifference between signature and thumb impression which should have been kept in view. It would, therefore, appear that thumb impression of Munnilal on Ex. D-l is not proved even by the statement of Abdul Gafoer. In this view of the matter, it must be held that Will (Ex. D-l) is not proved to be the will of Munnilal.
9. There is yet another aspect of the matter, Sitara Jan (P.W. 2) has admitted in her cross-examination (para 6) that Munnilal and his Guru Nasiban were both Moham-madans. Though Devi Jan (P.W. 3) has described the difference between their community and other Musiims, the fact that Munnilal was a Musalman is not denied. Barkat (P.W. 4) also proves that he was a Muslim (para 3). Abdul Gafoor (D. W. 2) has admitted in his cross-examination that Guru-Chela system was prevalent among eunuchs he has also admitted that Nasiban was Guru of Munnilal and is therefore recorded as father of Munnilal. It is therefore clear that Munnilal was a Muslim and in his community Guru-Chela system was in existence. Respondent Badshah alias Kamla Jan was the Chela of Munnilal is clear not only from Will (Ex. R-l) but also Will (Ext. D-l). A Chela alone is the heir of his Guru. Under the circumstances, Munnilal being a Muslim could not have willed more than 1/3rd of his property without consent of his Chela, the respondent. The submission of the learned Counsel for the appellant that a Muslim would be entitled to execute the will in accordance with Muslim Law, must be accepted as correct. In this view of the matter even if the will was held to be actually executed by Munnilal, this Court could not hold it valid for more than 1/3rd share of the property, as that is the limit of testamentary power of a Muslim (see Section 118 of Mulla's Principle of Mohammadan Law).
10. In spite of it, it should be mentioned that the parties have gone to the trial knowing full well the controversies between them. The respondent-plaintiff has specifically averred in para 3 of the plaint that in his community Guru-Chela system was prevalent under which Chela inherits property of the Guru. Itis specifically averred that Munnilal could not have, according to custom of the community, transferred the property to anyone outside the community. The appellant No. 1 in his written statement denied existence of any such custom (see para 3 of W.S.). In his statement as D.W. 2 the respondent admitted existence of Guru-Chela system in the community. He denied any knowledge of the custom among eunuchs prohibiting transfer of property to anyone except the member of community. According to him, there was no such restriction (para 8). He admitted that he was neither eunuch nor belonged to their community. The appellant did not adduce any evidence to rebut the evidence of the respondent. The respondent-plaintiff examined Sitarajan (P.W. 2), Devi Jan (P.W. 3), Barkat (P.W. 4), Shafi Jan (P.W. 5), Anar Jan (P. W. 6) and himself as (P.W. 7) to prove the existence of this custom. It was not even asked from anyone of these witnesses in their cross-examination that the custom was not ancient presumably because it was never doubted. These witnesses do not belong to Sagar alone but belong to different places of Madhya Pradesh and can therefore be treated to be representatives of their community in the State. In the absence of any evidence to the contrary, there is no reason why their statements should be doubted. In this view of the matter, it must be held that the respondent has established that the property of a eunuch is not transferred by a will to person outside the community, because of the well established custom in the community.
11. The conclusion would lead to this Court to examine the submission of the learned Counsel for the appellant relating to the reasonableness of the said custom or consideration of the public-policy. It is true that Muslim Law does not debar a Muslim from executing a will of his property in favour of anyone including the persons outside the community whether a custom limiting the choice of a person in whose favour the will is executed would be contrary to this law? In the opinion of this Court, the custom does not violate the aforesaid law. It only limits the choice of legatee without effecting the right to execute the will. Such a custom cannot beheld to be either against public-policy or the aforesaid Mohammadan Law. The custom would, therefore, not be rendered invalid for this reason.
12. In view of the discussion aforesaid, this Court finds no illegality in the impugned judgment and decree. The appeal fails and is dismissed. However, in view of the peculiar facts and circumstances of the case, the parties will bear their own costs of this appeal.