Palli, J.
1. This appeal is directedagainst the judgment and order passed by thelearned single Judge of this Court wherebythe appeal filed by the respondents against thejudgment and order of the learned DistrictJudge, Sri Ganganagar was accepted and thejudgment and order passed by the learnedDistrict Judge granting probate to the appellant was reversed and the probate petitionfiled by the appellant has been ordered to bedismissed.
2. One Dr. Kapoor Singh resident of Hanumangarh was a Medical Practitioner. The said Dr. Kapoor Singh died on 5-1-1967 and on 31-12-1966 late Dr. Kapoor Singh executed a will and got it duly registered in favour of the appellant Smt. Sudarshan Kaur who is the widow of the deceased. This is an admitted position that the appellant is the second wife of the deceased Dr. Kapoor Singh. As per the material on record Mst. Shyam Kaur was the first wife of late Dr. Kapoor Singh and who had died about 3 years before the execution of the will in question. Respondents Ripudaman Singh, Gurdarshan Singh and Smt. Harbans Kaur are the children from the first wife and Bhupinder Singh and Bhupinder Kaur are his children from the second wife Smt. Sudarshan Kaur appellant.
3. As per the contents of the will the deceased had already separated his first wife Shyam Kaur and children and given them property and were living separately from him and Smt. Sudarshan Kaur and in order to avoid any dispute between the heirs in respect of the left over property, the deceased Dr. Kapoor Singh executed and got registered the will in question dated 31-12-1966.
4. Smt. Sudarshan Kaur appellant moved a probate petition in the Court of learned District Judge, Sri Ganganagar and prayed for grant of probate in respect of the will in question and this application was moved on 15-3-1967. The respondents who are the sons and daughters of late Dr. Kapoor Singh from his first wife raised objections to the grant of probate in favour of the appellant and inter alia pleaded that the appellant is the wife of one Gurucharan Singh and got children from her deceased husband and was a nurse in the Northern Railway Hospital at Jodhpur and left the service in the year 1962 and was employed by late Dr. Kapoor Singh as Nurse in his Medical Clinic and the deceased never married her and thus, she was not the legally wedded wife of Dr. Kapoor Singh. It was further pleaded by the respondents in their objection petition that Dr. Kapoor Singh never executed any will in favour of the appellant and the alleged will is a forged document. Smt. Sudarshan Kaur was a nurse in the clinic of the deceased and since she was living in his house and taking advantage of his illness this document has been prepared and, thus, she was not entitled to the grant of any probate on the basis of the said will. It was further said that Bhupinder Singh and Bhupinder Kaur who are alleged to be the daughter and son of Dr. Kapoor Singh are not his children and they i.e. respondents have filed another petition for grant of probate on the strength of a will executed by late Dr. Kapoor Singh on 3-1-1967 whereby the will in question was cancelled by the subsequent will and prayed that the application filed by Smt. Sudarshan Kaur for grant of probate be dismissed.
5. In order to prove the will in question the appellant produced five witnesses before the learned District Judge. P.W. 1 Rupinder Singh who participated in the preparation of the will and signed the same before the Sub-Registrar in identifying the deceased. The second witness Nand Singh P.W. 2 is the attesting witness of the said will and P.W. 3 Budhsingh is another attesting witness. P.W. 4 is the appellant Smt. Sudarshan Kaur and then there is a statement of P.W. 5 Manphool Singh, Tehsildar who registered the will as Sub-Registrar.
6. It will be very relevant at this stage to take notice of the fact that no evidence has been placed on record from the side of the respondents against this evidence or to prove their contentions which they have raised in their objection petition.
7. The learned District Judge after appreciating the evidence placed before him on the record and after going through the relevant provisions of law on the point accepted the application for grant of probate and held that the appellant had proved due execution of the will in question Ex. 1 and was entitled to get probate on this basis in respect of the properties mentioned therein.
8. On appeal having been filed against the judgment of the learned District Judge, the learned Single Judge of this Court vide the impugned judgment accepted the appeal filed by the respondents and reversed the judgment passed by the learned District Judge granting probate to the appellant and consequently, dismissed her petition for grant of probate.
9. The only point that was raised and argued before the learned single Judge and was accepted was that there was no proper attestation of the will and as a consequence no probate could be granted on the basis of the said will. No other point was raised of debated before the learned Single Judge from the side of the respondents as is apparent from the opening part of the impugned judgment. According to the observations made by the learned single Judge, the statement made by the attesting witness Nand Singh it has been found that he stated to have put his signatures earlier in point of time before the testator actually put his signatures on the will in question. It has further been observed that according to this witness the second attesting witness i.e. Budhsingh also signed simultaneously along with P.W. 2 Nand Singh and thus, the reasoning that prevailed with the learned single Judge was that both these attesting witnesses had actually put down their signatures before the executant and thus, could not be termed as attesting witnesses as per the requirement of Section 63(c) of the Indian Succession Act which will be noticed hereunder:--
'(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 been 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 signatures 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 witnesses be present at the same time, and no particular form of attestation shall be necessary.'
10. On analysis of the aforesaid provision the learned single Judge has observed in the impugned judgment that after the will is executed by the testator by putting his signatures on the said will, the same requires attestation by two or more witnesses, each of whom has seen the testator signing the said will. The other requirement of the provision is that each of the attesting witnesses should sign the will in the presence of the testator. Since both the attesting witnesses had signed the will Ex. 1 even before the executant put his signatures on the document could not be held to be attesting witnesses for the purposes of attestation of a document as per the requirements of Section 63 reproduced above. The other reasoning that prevailed with the learned single Judge was that Rupinder Singh P.W. 1 could not be considered to be an attesting witness since he had only identified the executant and so the statement of P.W. 5 Manphool Singh, Sub-Registrar could not be taken notice of attestation as the said witness was examined for the purpose of registration. As per the learned single Judge the attestation means that the document had to be attested by the attesting witnesses to testify the signatures of the executant and the person cannot be considered to be an attesting witness unless the signatures are put by him testifying to the signatures of the executant. Learned single Judge further took notice of some decided cases which were cited at the bar by the learned counsel appearing for the parties and after applying the aforesaid principles it was held that since the attesting witnesses have not signed the will to testify the signatures of the executant the execution of the will was not complete and their statement could not be considered as that of attesting witnesses on account of lack of 'animo at-testandi'. In respect of the other two witnesses it has been found that their statements too could not be considered as they had signed in token of registration and identification and not in token of due attestation of the will.
11. Learned counsel appearing for the appellant while opening the arguments, submits that the learned single Judge has not properly appreciated the evidence on record and the requirement of law on the point. It is argued that the reading of the statements of the attesting witnesses and coupled with the attending circumstances and further appreciation of the entire material on record which consists of the statements of other three witnesses it could not be held that there was no proper attestation and the learned single Judge has gone wrong in setting aside the well reasoned judgment passed by the learned District Judge who had rightly granted probate and held the will to have been duly executed and attested after appreciating and scrutinising the evidence on record and the attending circumstances. The learned counsel further proceeds to argue that no particular form is prescribed under the provisions of law for the purposes of attestation and the impugned judgment deserves to be set aside.
12. Learned counsel appearing from the side of the respondents has stated at the bar that he adopts the reasoning and the case law cited at the bar and taken notice of by the learned single Judge and has nothing more to submit in addition to the case law cited at the bar before the learned single Judge. Learned counsel for the respondents has relied upon another judgment of the Himachal Pradesh High Court delivered in Smt. Punni v. Sumer Chand, AIR 1995 Him Pra 74.
13. After hearing the learned counsel for the parties and after carefully scrutinising the statements of each of the witnesses examined from the side of the appellant to prove due execution and attestation of the will in question, we are of the view that the learned single Judge has gone wrong in accepting the appeal filed by the other side and dismissing the probate application. We are also of the opinion that the judgment passed by the learned District Judge was just and proper and called for no interference.
14. In so far as the reasoning adopted by the learned single Judge is concerned there is no dispute. Further there is also no dispute in so far as the application of Section 63(c) is concerned. There is again no dispute in respect of the case law cited at the bar and taken notice of by the learned single Judge. The question that calls for determination in this appeal is whether in view of the material on the record and in view of the law on the point the will in question has been validly executed and attested or not. On a bare reading of the above quoted provision contained in Section 63(c) it may be noticed that the provision itself prescribes, 'no particular form of attestation shall be necessary'. The will as we understand is to be proved like any other document. The requirement in so far as the will is concerned is that two or more witnesses are required for the purposes of attestation each of whom 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. It is further to be found in the said provision that 'it shall not be necessary that more than one witness be present at the same time.'
15. The stage is now set to appreciate and take notice of the statements of the witnesses examined in proof of the will in question, in order to find whether they have stood the test of the requirement of law in so far as the provisions of Section 63(c) are concerned.
16. P.W. 1 Rupinder Singh is a witness who is stated to have identified the executant for the purposes of registration. A reading of the statement of this witness will reveal that the will was prepared in his presence and the executant signed in his presence on all the four pages and the attesting witnesses Nand Singh and Budh Singh were present at the residence of Dr. Kapoor Singh and signed the will as attesting witnesses. This witness was present at the time when the Sub-Registrar came to register the will at the residence of late Dr. Kapoor Singh executant. It has also been stated by him that the will was read over by the Sub-Registrar and late Dr. Kapoor Singh also read out the will and then put his signatures on it. He also states that the draft of the will was dictated by the deceased in the presence of the witnesses which took almost about an hour. Besides Smt. Sudarshan Kaur appellant also remained present during the entire time. The draft was taken away to the scribe and brought back after some time by a clerk of a counsel and thereafter in the evening came the Sub-Registrar for the purposes of registration.
17. P.W. 2 is the statement of Nandsingh the attesting witness, who has stated clearly that Dr. Kapoor Singh had signed in his presence before the Tehsildar at all the four places and he signed on the asking of Dr. Kapoor Singh. In cross-examination this witness has said that perhaps Budhsingh had signed earlier to him as he was sitting by my side and we both put our signatures side by side. He further states that he had also signed as an identifying witness and that Rupinder Singh was also there throughout who too had signed the will as a witness.
18. Notice may also be taken of the statement of the other attesting witness i.e. Budhsingh examined as P.W. 3. He has said in the statement that Dr. Kapoor Singh told him that listen to the draft and this draft is with Satbel Clerk (Munshi) and besides Smt. Sudarshan Kaur the wife of the executant, his sister Shyam Kaur Rupinder Singh, Nand Singh and Satbel were present. The draft of the will was read over whereafter the instructions were given by the deceased to Satbel to get the will prepared and Rupinder Singh also left in the meantime whereas he and Nand-singh witness remained with the executant all through when after about 2 or 2 1/2 hours Satbel brought back the will and in the meantime Rupinder Singh also came back. After having read the will the deceased asked Satbel to read out the will and it was read out and in the meantime the Tehsildar arrived at the scene and we signed the will thereafter. The Tehsildar also read out the will to Dr. Kapoor Singh and the executant signed the same but he signed before Dr. Kapoor Singh put his signatures. But he signed on the asking of Dr. Kapoor Singh. Nandsingh also signed on the asking of Dr. Kapoor Singh and the Tehsildar registered this will in his presence. In cross-examination he has said that he does hot remember whether Nandsingh signed earlier to him or not. This witness of course has said that Nandsingh had signed the will before Dr. Kapoor Singh put his signatures on every page of the said will.
19. Then there is a statement of appellant Sudarshan Kaur P.W. 4 we need not take notice of her statement as she can be termed as interested person.
20. Lastly, there is a statement of the Sub-Registrar Manphool Singh examined as P.W. 5. He has categorically stated that between 4 and 5 p.m. on 31-12-1966 he reached the residence of Dr. Kapoor Singh who himself placed the will before him and the will was read over by him to Dr. Kapoor Singh who accepted the same as true and correct and then Dr. Kapoor Singh put his signatures on the will Ex. 1 at its back at point J to K and L to M. In cross-examination this witness has said that for the purposes of identification Dr. Kapoor Singh had already secured the presence of two witnesses and they witnessed the proceedings of the identification.
21. We have also perused and examined carefully the will in original which was taken out from the sealed cover. From the last page where the signatures of the executant and of the attesting witnesses appear it can safely be said that Dr. Kapoor Singh signed and thus put his signatures before the signatures of the attesting witnesses. A look at the signatures and their setting in sequence of the writing from the above an opinion can be formed that Dr. Kapoor Singh signed the will, the signatures appears at the centre of the two attesting witnesses and then whatever space was left on the right and left hand side the signatures of the attesting witnesses were obtained and adjusted.
22. It may be noticed that the execution of the will was not disputed before the learned single Judge. It may also be noticed that the appellant has been accepted to be the legally wedded wife by the respondents as observed by the learned single Judge. No evidence has been placed on record from the side of the respondents that the will is a result of fraud, coercion, undue influence and/or that the executant was not in sound health and mind at the time of execution of the will. No suspicious circumstance has been pointed out from the side of the respondents on the strength of which the will in question can be discarded. The will according to the executant is a pious document and his wisdom and looking to the over all circumstances he desires to give benefit to some one for whom he has love and affection or the will is resulting out of the services rendered by a particular person in whose favour the will is being made. The executant is dead. The will always speaks from the grave of the executant and unless and until there is some thing on the record which pricks the conscience of the Court regarding the validity of the will, the Courts of law should always give respect to the wishes of the deceased executant since it is his will, wish and desire that the property he is bequeathing should go to whom he desires to give in the manner indicated in the will. The Court should always place itself in the position of the executant and then examine the will its execution and attestation taking into consideration the over all attending circumstances and the history of the family.
23. A quotation of a Writer Mr. Fuller though not very much relevant but can usefully be quoted when he says 'prescribe no positive laws to the thy will; for thou mayest be forced tomorrow to drink the same water thou despisest today.'
24. It has been found that the first wife and her children already stood separated much before the will in question was executed. They had already been given over whatever the deceased desired and were living separately from him. Since it is not disputed that the appellant is the legally wedded late Dr. Kapoor Singh and also have children from him and she was living and serving the deceased. The first wife had already died more than three years before the execution of the will in question and it appears from the circumstances that the deceased was not keeping good health and was only 57 years of age at the time of his death. He was a Medical Practitioner and thus, very well educated. He possibly knew that he may not live long and that is why he saw to it that the arrangement is made and the property is given to the appellant so that there may not be a dispute between her and the children from the first wife and keeping this view in mind the will in question was made. Another important thing that cannot be lost sight of is that no question was put from the side of the respondents in cross-examination to the Sub-Registrar or Rupinder Singh PW 1 to the effect whether they signed first in point of time or the executant. Moreover, we have already scrutinised statement of both these witnesses and it cannot be further lost sight of the fact that their depositions were being made after about two years of the execution of the document and minor discrepancies here and there were likely to come. The requirement of law is that the statement of even one witness was enough and assuming that we discard the statement of Budhsingh no fault could be found in the statement of Nandsingh in his testimony. Even if the statements of Rupinder Singh and Sub-Registrar Manphool Singh are not accepted as attesting witnesses the fact cannot be lost sight of that the attesting witnesses signed in their presence and were present all through. Both these attesting witnesses have deposed that the will was drafted in their presence, was read over by the deceased, the draft was taken away and a formal will was brought after about 2 1/2 hours. These witnesses remained with the deceased throughout till the registration was complete. According to these witnesses the will was again read over by the Sub-Registrar. This again is an undisputed fact that both these witnesses have seen the executant putting his signatures on the will at every page and both these witnesses put their signatures in the presence of the executant and on his asking. It was, therefore, not proper for the learned single Judge to lose sight of these admitted positions and to upset the judgment passed by the learned District Judge.
25. As noticed above in the phraseology of the provision itself it has been said that no particular form is necessary for attestation. Some meaning has to be given to this language. The requirement of law is that not more than one witness should be present at the same time. Attestation in its ordinary meaning means to testify the signatures of the executant and for the purposes of valid attestation the only requirement is that the witnesses should have seen the executant sign the instrument. Further the executant had in the present case taken all possible precautions to see that a legal and valid will is executed and for that purpose he took all neecessary steps which he could take and are required. Two independent witnesses were called for the purposes of due execution and attestation. The draft was prepared and read by him again, the services of a clerk (Munshi of a lawyer) were obtained for formal preparation of the will. P.W. 1 Rupinder Singh was kept present throughout since morning till the things took final shape upto registration. The executant did not desire to leave anything to chance or suspicion and on that very day in sequence of the events summoned the Sub-Registrar at his residence so that the will is given finality and is registered so that its validity is not doubted at any point of time. It is not the case that the attesting witnesses have said anything on validity of the will in so far as its due execution is concerned. Even the learned single Judge has held the will to be properly executed. Once it is so found and subsequently the registration is also done. There will be attracted the presumption of authenticity and regularity. This presumption should be made applicable even if the testator to the will speak against the observance of the desired formalities and the Court having full regard to the circumstances treated such evidence as mistaken. The presumption in this particular case would apply more strongly when another person though technically not an attesting witness was present through at every stage i.e. preparation of the draft, execution and participated in due compliance of the formalities, the presence was mental as well as physical. Again though at the cost of repetition, it may be observed that all rituals and formalities, legal requirements were held at one sitting and everybody assembled by appointment. All of them were present all through till the matter was finalised and nothing was put to the witnesses in cross-examination on the question of the validity of execution or otherwise and simply because a word has been secured in the cross-examination in respect of one witness which too in our opinion does not carry much weight, it cannot be inferred that there was no due attestation. A pure finding of fact had been arrived at by the learned District Judge before whom the evidence was examined. It was not open for the learned single Judge to disturb that finding which was based on consideration of the material placed on the record. Although the scope in special appeal is further narrowed down but in the peculiar facts and circumstances of this case and in order to find out the truth we have taken pains to re-read the existing material just to find out whether the impugned judgment in the peculiar facts and circumstances of this case is just and proper or not. It is in this situation that we had to scan and scrutinise the matter in depth.
26. Notice may also be taken of two decisions rendered by the Hon'ble Supreme Court in H. Venkatachala Iyengar v. B. N. Thimmajamma, AIR 1959 SC443 and Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529. Both these decisions are in respect of due execution and attestation of the wills and Hon'ble the Supreme Court in the case of H. Venkatachala (supra) has observed in para 18 which may usefully be reproduced hereunder (at p. 451 of AIR):--
'It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the useful test of the satisfaction of the prudent mind in such matters.'
Again in para 19 their Lordships of the Hon'ble Supreme Court observed as under (at Pp. 451-52 of AIR):--
'However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support,of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder.'
27. In Shashi Kumar's case (AIR 1964 SC 529) (supra), their Lordships of the Hon'ble Supreme Court observed as under:--
'The onus of proving the will is on the propounder 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.'
'If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations.'
'The fact that the will in dispute is a holograph will and admittedly in the hand of the testator and in the last paragraph of the will the testator had stated that he had signed the will in the presence of the witnesses and the witnesses had signed it in his presence and in the presence of each other raise strong presumption of its regularity and of its being duly executed and attested. If there is hardly any suspicious circumstances attached to the will it will require very little evidence to prove due execution and attestation of the will.'
'Held on a review of the entire evidence in the case that due execution and attestation of the will in dispute had been proved as alleged by the propounders and they were entitled to the grant of probate.'
The decision given in the case of H. Venkatachala (AIR 1959 SC 443) and Rani Purnima Devi v. Khagendra Narayan Dev, AIR 1962 SC 567 were followed in Shashi Kumar's case (AIR 1964 SC 529) (supra).
28. For the reasons recorded above, we hold that the will in question Ex. 1 is proved as duly executed and attested and no fault can be found with it.
29. In the result, the special appeal is allowed, the judgment and order passed by the learned single Judge is set aside and that of the learned District Judge is affirmed and consequently the petition seeking probate on the basis of the will in question is allowed. The costs are made easy.