1 2025:CGHC:60680 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 185 of 2013 1 - Shrikant Dani S/o Lochan Prasad Dani Aged About 27 Years R/o Sakrali, Tah. And P.S. Dabhara, Distt. Janjgir-Champa C.G., Chhattisgarh ...Appellant versus 1 - Premchand (Died Through Lrs) As Per Honble Court Order Dated 17-09-2025 1(A) Anil Kumar Gupta S/o Late Premchand Gupta Aged About 55 Years R/o Beladeula, Kharraghat, Raigarh, District Raigarh (C.G.) 1(B) Harish Kumar Gupta S/o Late Premchand Gupta Aged About 51 Years R/o Beladeula, Kharraghat, Raigarh, District Raigarh (C.G.) 1(C) Manju Gupta D/o Late Premchand Gupta Aged About 58 Years R/o Beladeula, Kharraghat, Raigarh, District Raigarh (C.G.) 1(D) Kiranlata Gupta W/o Late Premchand Gupta Aged About 80 Years R/o Beladeula, Kharraghat, Raigarh, District Raigarh (C.G.) 2 - Annapurna Dani W/o Prakash Kumar Gupta Aged About 52 Years R/o Sakrali, Tah. And P.S. Dabhara, Distt. Janjgir-Champa C.G., District : Janjgir-Champa, Chhattisgarh 3 - State of Chhttisgarh W/o Through Collector, Janjgir-Champa, Distt. Janjgir- Champa C.G., District : Janjgir-Champa, Chhattisgarh ... Respondents (Cause-title taken from Case Information System) For Appellant : Mr. Sandeep Patel, Advocate. For Respondents No.1(A) to 1(D) : Mr. Praveen Dhurandhar, Advocate. Digitally signed by MOHAMMED AADIL KHAN Date: 2026.02.13 20:50:00 +0530 2 For State : Mr. Rajeev Bharat, Govt. Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Judgment on Board 12-12-2025 1. The present second appeal has been filed by defendant No.1 under Section 100 of the CPC against the impugned judgment and decree dated 10-12- 2012 passed by the First Additional District Judge Sakti, District Janjgir- Champa (C.G.) in Civil Appeal No.71A/2010 whereby the learned first appellate Court allowed the appeal filed by the plaintiff and decreed the suit in his favour and set aside the judgment and decree passed by the Civil Judge Class II Dabhara, District Janjgir-Champa (C.G.) dated 28-09-2010 in Civil Suit No.125A/2007. 2. The present second has been admitted on 14-07-2017 on the following substantial question of law:- “Whether the lower appellate Court, while reversing the finding of the trial Court was justified by upholding the validity of the registered Will deed dated 10.9.1984 (Ex.P-11) executed by Sukho Bai in favour of Plaintiff- Premchand even in absence of examination of its attesting witness ?” 3. For the sake of convenience the status of the parties are being referred as shown their status in the civil suit. 4. The plaintiff has filed a civil suit for declaration of title, permanent injunction declaring the order dated 12-11-2003 passed by the C.G. Board of Revenue Bilaspur and also for confirmation of his possession over the suit land shown in Schedule A and B annexed with the plaint. It is pleaded in the plaint by the plaintiff that the suit land of Schedule A annexed with the plaint total area 12.46 acre situated at village Sakrali, P.H. No.13, Tahsil Dabhara, District Janajgir-Champa was owned by one Sukhobai W/o Yugal Kishore Dani and she also owned total 6.89 acre of land shown in Schedule B annexed with the plaint situated at Village Saradih, P. H. No.14, Tasil Dabhara, District Janjgir-Champa. The Sukhobai was issueless and the plaintiff is son of her 3 sister Parvati Devi who was taking care of Sukhobai during her lifetime and as per her love and affection Sukhobai executed a will on 18-10-1983 in favour of the plaintiff. Again another will was executed by Sukhobai in his favour on 10-09-1984 and earlier will dated 18-10-1983 was revoked and get the subsequent will registered. The necessity to execute the subsequent will was arose for the reason that there were discrepancies in the khasra number and the area of the land of Sukhobai mentioned in the earlier will. Sukhobai has died on 19-10-1998 and then the plaintiff become the title and possession holder of the land owned by Sukhobai by virtue of the said will dated 10-09-1984. When he made an application before the Tahsildar Dabhara for mutation of his name in the revenue records on the basis of said will the mutation order was passed on 05-05-2000 in his favour which was challenged by the defendants No.1 and 2 before the Sub-Divisional Officer (Revenue) Dabhara by filing an appeal which was allowed on 20-11-2000 and the mutation order of the plaintiff was set aside. The mutation proceeding traveled upto C.G. Board of Revenue Bilaspur which was ultimately decided against the plaintiff on 12-11-2003 and thereafter, the defendants are interfering with the possession of the plaintiff which gives cause of action to file the present suit to the plaintiff. 5. The defendant No.1 contested the claim of the plaintiff and filed his written statement, denied the plaint averments and pleaded that the Sukhobai has not executed any will in favour of the plaintiff either on 18-10-1083 or on 10- 09-1984. He also denied that the plaintiff was taking care of Sukhobai. It is also pleaded that from perusal of both these will deed it transpires that the earlier will was revoked on the ground that the khasra number and area of the land of Sukhobai was not correctly mentioned in it, however, in the subsequent will instead of mentioning correct khasra number of the land, it is mentioned that the entire land of Sukhobai are being given to the plaintiff through the will. There is no specifically mentioned the khasra number and 4 area of the land of Sukhobail. The defendant No.1 has specifically denied the execution of any will by Sukhobai in favour of the plaintiff and further pleaded that as Section 15 of the Hindu Succession Act, 1956, the defendant No.1 is the legal heir of late Sukhobai and entitled to inherit her property because the property obtained by Sukhobai is obtained through her husband Yugal Kishore Dani and after her death as issueless the property was revert back to the brothers of her husband and through whom the defendant No.1 is inherited the property. The revenue courts have correctly decided the dispute between the parties and Board of Revenue has passed the order against the plaintiff. The house on which Sukhobai was residing is also owned and possessed by defendant No.1 for which the plaintiff has not raised any claim. The defendant No.1 is in possession of the land of Sukhobai and the plaintiff is not in possession. He further reiterated in the pleading that since Sukhobai has not executed any will in favour of the plaintiff he is not entitled for any relief in the suit. 6. The defendant No.2 has also contested the claim of the plaintiff and filed her written statement separately, denied the plaint averments and submitted that the actual owner of the suit property is Premlal Dani and not the Sukhobai. The plaintiff is not the near relative of Yugal Kishore Dani who was the husband of the Sukhobai. She too has specifically denied the execution of will in favour of the plaintiff and pleaded in consonance with pleadings made by defendant No.1 and she too has prayed for dismissal of the suit of the plaintiff. 7. Based on the pleadings of the parties the learned trial Court has framed the following issues:- “1- D;k okn Hkwfe ds laca/k esa LoxhZ; lq[kksckbZ us oknh ds i{k esa iathd`r olh;rukek fnukad 10-09- 1984 dks fu"ikfnr dh Fkh \ 2- D;k izfroknh dzekad&1 Jhdkar nkuh e`frdk lq[kksckbZ dk ,d ek= fof/kd mRrjkf/kdkjh gS \ 3- D;k vuqlwph ¼c½ esa n’kkZ;h gqbZ oknxzLr Hkwfe izseyky nkuh oYn Hkxrjke nkuh ds gd LoRo dh Hkwfe gS \ 5 4- D;k vuqlwph ¼c½ esa n’kkZ;h xbZ Hkwfe izfroknh dzekad 2 ds LoRo vkf/kiR; dh gS \ 5- D;k jktLo eaMy N-x- fcykliqj }kjk jktLo vihy dzekad 96@v&6@2002&2003 esa ikfjr vkns’k fnukad 12-11-2003 fof/k fo#) gksdj 'kwU; gS \ 6- D;k izLrqr okn le;kof/k esa gS \ 7- D;k oknh }kjk okn dk leqfpr ewY;kadu dj U;k;’kqYd vnk fd;k x;k gS \ 8- D;k izLrqr okn izpyu ;ksX; gS \ 9- D;k izLrqr okn dh lquokbZ dk {ks=kf/kdkj bl U;k;ky; dks izkIr gS \ 10- vuqrks"k ,oa okn O;; \” 8. The plaintiff in support of his case examined herself as PW-1, Gangaram PW-2, Bundram PW-3 and Ramcharan PW-4 and relied up the documents Ex.-P/1 to P/5 which are the copies of Khasra panchsahala and kishtabandi Khatouni, Ex.-P/6 is loan form of Bilaspur Cooperative Central Bank Limited, Ex.-P/7 is permit issued to Sukhobai by Bilaspur Center Bank Limited, Ex.- P/8 is the order dated 24-11-200 passed by the Sub-Divisional Officer Dabhara, Ex.-P/9 is the is the order passed by the Tahsildar Dabhara dated 05-05-2000, Ex.-P/10 is the order dated 12-11-2003 passed by the C.G. Board of Revenue Bilaspur, Ex.-P/11 is the sale deed dated 10-09-1984, Ex.- P/12 is the resolution of the Gram Panchayat Sakrali dated 05-09-1999, Ex.- P/13 is the copy of FIR, Ex.-P/14 is the receipt of amount paid for borewell, Ex.-P/15 is the electricity bill, Ex.-P/16is the power of attorney executed by Sukhobai in favour of Anil Kumar Gupta dated 20-03-1998, Ex.-P/17 is the will deed dated 18-10-1983 and Ex.-P/18 and P/19 are the agreement executed by Sukhobai. 9. 9. The defendants have examined defendant No.1 Shrikant Dani as PW-1, Yogendra Lal DW-2 and relied upon the documents Ex.-D/1 which is statement of Manjaram, Ex.-D/2 statement of Ramcharan Mehar and Ex.-D/3 which is Vyavastha Patra dated 30-03-2000. 10. After appreciation of the evidence led by the parties the learned trial Court has held that the plaintiff could not prove the due execution of will by examining its attesting witnesses and will is not proved in the case which is 6 base of claim of the plaintiff and dismissed his suit. 11. The judgment and decree of the learned trial Court was challenged by the plaintiff before the learned first appellate Court and after hearing of the parties the first appeal filed by the plaintiff was allowed and the judgment and decree passed by the learned trial Court is set aside and the suit of the plaintiff has been decreed holding that the will dated 10-09-1984 Ex.-P/11 was duly executed by Sukhobai in favour of the plaintiff and he is entitled for relief for declaration of title, permanent injunction and also entitled for confirmation of his possession over the suit property which is under challenge in the present appeal. 12. The present second appeal has been admitted on the following substantial question of law as has been stated in the earlier part of this judgment. 13. Learned counsel for the appellant/defendant No.1 would submit that the sole basis of claim of the plaintiff over the suit land is will dated 10-09-1984, it is for the plaintiff to prove due execution of will by examining its attesting witness, however, the plaintiff has not examined any of the attesting witnesses to prove the due execution of will. Even if two attesting witnesses as shown in the said will Ex.-P/11 are being found dead, the plaintiff should have taken recourse of Section 65 of the Indian Evidence Act to prove due execution of will, but he did nothing. In absence of any attesting witness the execution of will cannot be proved as provided under Section 63 of the Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872. He would also submit that although the plaintiff has examined the scribe of the will deed as PW-4, however, the status of the scribe cannot take place as the attesting witness of the deed, therefore, in absence of any evidence of attesting witness to the will, the execution of will cannot be found proved which has rightly been considered by the learned trial Court. He would also submit that the learned first appellate Court has considered the will merely on the basis of the fact that it was a registered will. However, registration of 7 will does not affect burden of proving of its execution by examining its attesting witnesses. Therefore, the impugned judgment and decree is erroneous and liable to be set aside. 14. Per contra, learned counsel appearing for respondents No.1 (a) to (d) would oppose the submissions made by learned counsel appearing for the appellant and submitted that the plaintiff is sister’s son of Sukhobai and he was taking care of her during her lifetime, by her affection she executed a will on 18-10-1983 with respect to her entire property, however, she subsequently felt that certain khasra numbers and area of her land were incorrectly mentioned in the said will dated 18-10-1983, she revoked earlier will and executed another will on 10-09-1984 and get it registered. The subsequent will dated 10-09-1984 was duly proved by its scribe PW-4 Ramcharan. Since it is a registered will its genuineness cannot be doubted. The plaintiff could not examine the attesting witness of the will as both the attesting witnesses were died and only the scribe was alive who has been examined as PW-4. Therefore, the learned first appellate Court has rightly considered the evidence available on record with respect to due execution of will by Sukhobai in his favour which does not suffer from any perversity and illegality and the appeal is liable to be dismissed. 15. Despite service of notice to respondent No.2 no one appears on her behalf. 16. I have heard learned counsel for the parties and perused the record of the trial Court as well as the learned first appellate Court. 17. The issued revolved around the case and the substantial question of law framed is with respect to the poof of due execution of will by Sukhobai in favour of the plaintiff as to whether the plaintiff has proved the due execution of will by examining its attesting witness as required under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. 8 18. As per the provisions of Section 63 of the Succession Act, 1925 for due execution of a will (1) the testator should sign or affix his mark to the will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will; (3) the will should be attested by two or more witnesses; and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator. 19. The abovestated provision of attestation of will under Section 63(c) of the Succession Act, 1925 by two or more witnesses has been held to be mandatory by Their Lordships of the Supreme Court in the matter of Janki Narayan Bhoir v. Narayan Namdeo Kadam1. 20. Section 68 of the Evidence Act, 1872 provides as under: “68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” 21. By the aforesaid provision, a document required by law to be attested to have its execution proved by at least one of the attesting witnesses if alive and it is subject to process of the court conducting the proceedings involved and is capable of giving evidence. However, proviso to Section 68 of the Evidence Act, 1872 is not available in case of will. 22. In the matter of Girja Datt Singh v. Gangotri Datt Singh2, Their Lordships of the Supreme Court have held that in order to prove the due attestation 1 (2003) 2 SCC 91 2 AIR 1955 SC 346 9 of will, the propounder of will has to prove that ‘A’ and ‘B’, the two witnesses saw the testator sign the will and they themselves signed the same in the presence of the testator. Their Lordships while considering Section 68 of the Evidence Act, 1872 further held that from the mere signature of two persons appearing at the foot of the endorsement of registration of will it cannot be presumed that they had appended their signature to the document as an attesting witness or can be construed to have done so in their capacity as attesting witness. It was pertinently observed as under: “In order to prove the due attestation of the will Ex. A36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the will and they themselves signed the same in the presence of the deceased. The evidence of Uma Dutt Singh and Badri Singh is not such as to carry conviction in the mind of the Court that they saw the deceased sign the will and each of them appended his signature to the will in the presence of the deceased. They have been demonstrated to be witnesses who had no regard for truth and were ready and willing to oblige Gur Charan Lal in transferring the venue of the execution and attestation of the documents Ex. A23 and Ex. A36 from Gonda to Tarabganj for reasons best known to themselves.” ***** “One could not presume from the mere signature of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68, Indian Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Nageshur be treated as attesting witnesses. This line of argument therefore cannot help Gangotri.” 23. In the matter of H. Venkatchala Iyengar v. B. N. Thimmajamma and others3 the Supreme Court speaking through Gajendragadkar, J., elaborately laid down the principles relating to the nature and standard of evidence required to prove a will. It was held as under: 3 AIR 1959 SC 443 10 “(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. (2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 63 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. (3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. (4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. (5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. 11 (6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.” 24. The principle laid down in the abovestated judgment has been followed with approval in Smt. Jaswant Kaur v. Smt Amrit Kaur and others4, Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another5, Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others6 and Jagdish Chandra Sharma (supra). 25. In the matter of Ramesh Verma (dead) Through Legal Representatives v. Lajesh Saxena (dead) by Legal Representatives and another7, the Supreme Court has again reiterated the need of proving the attestation of will in accordance with Section 63(c) of the Succession Act, 1925 read with Section 68 of the Evidence Act, 1872. 26. In Surendra Pal (supra), the Supreme Court while restating the guidelines regarding the nature and extent of burden of proof on the propounder of a will held that propounder has to show that the will was signed by the testator; that he was at the relevant time in a sound disposing state of mind; that he understood the nature and effect of the dispositions; that he put his signature to the testament of his own free will; and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. It was further held that in cases where the propounder has himself taken a prominent part in execution of a will which confers on him substantial 4 (1977) 1 SCC 369 5 (1974) 2 SCC 600 6 (2009) 4 SCC 780 7 (2017) 1 SCC 257 12 benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. 27. The Supreme Court in Yumnam Ongbi Tampha Ibema Devi (supra) has clearly held that the attestation of will is not an empty formality. Highlighting the importance of attestation of Will it was held it means signing a document for the purpose of testifying of the signatures of the executant. The attesting witness should put his signature on the will animo attestandi and it was held as under: “13. Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator’s signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.” 28. In Janki Narayan Bhoir (supra), the Supreme Court while considering Section 63(c) of Succession Act, 1925 and Section 68 of the Evidence Act, 1872 held that mere proof of signature of the testator on the will was not sufficient, the attestation thereof is also to be proved as required by Section 63(c) of the Act Succession Act, 1925. It was observed as under : “10.Section 68 of the Evidence Act speaks of as to now a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the 13 signature on the will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63 although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of Clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attention of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.” 29. The principle of law laid down in Janki Narayan Bhoir (supra) has been followed with approval in Jagdish Chandra Sharma (supra) by which it was held as under: “52. While dwelling on the respective prescripts of Section 63 of the Act and Sections 68 and 71 of Act 1872 visàvis a document required by law to be compulsorily attested, it was held Janki Narayan Bhoir (supra) that if an attesting witness 14 is alive and is capable of giving evidence and is subject to the process of the Court, he/she has to be necessarily examined before such document can be used in evidence. It was expounded that on a combined reading of Section 63 of the Act and Section 68 of the 1872 Act, it was apparent that mere proof of signature of the testator on the Will was not sufficient and that attestation thereof was also to be proved as required by Section 63 (c) of the Act. It was, however, emphasised that though Section 68 of the 1872 Act permits proof of a document compulsorily required to be attested by one attesting witness, he/she should be in a position to prove the execution thereof and if it is a Will, in terms of Section 63 (c) of the Act, viz., attestation by two attesting witnesses in the manner as contemplated therein. It was exposited that if the attesting witness examined besides his attestation does not prove the requirement of the attestation of the Will by the other witness, his testimony would fall short of attestation of the Will by at least two witnesses for the simple reason that the execution of the Will does not merely mean signing of it by the testator but connotes fulfilling the proof of all formalities required Under Section 63 of the Act. It was held that where the attesting witness examined to prove the Will Under Section 68 of 1872 Act fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects.” 30. Similarly, in Gopal Swaroop (supra), it has been held as under: “21. That brings us to the third requirement, namely, that the will must be attested by two or more witnesses each of whom has seen the testator signing and affixing his mark to the will or has seen some other person signing in the presence and by the direction of the testator. ...” 31. Reverting to the facts of the present case admittedly both the attesting witnesses of alleged will Ex.-P/11 namely Anuj Lal and Manjaram have died. Section 69 of the Indian Evidence Act, provided that if no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the documents is in the handwriting of that person. Section 69 of the Indian Evidence Act reads as under:- “69 – Proof where no attesting witness found–If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the 15 attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the documents is in the handwriting of that person.” 32. The submission of respondent No.1/plaintiff that will has been proved by examining its scribe PW-4 Ramcharan. The question as to whether the scribe can be considered to be the attesting witness of the will or not, has been considered by the Hon’ble Supreme Court in the matter of M. L. Abdul Jabbar Sahib vs. M. V. Venkata Sastri & Sons and Others 1969 (1) SCC 573, wherein the animo attestandi has been discussed and it has been held in Para -7, 8, 9 and 10 that:- “7. Section 3 of the Transfer of Property Act gives the definition of the word "attested" and is in these words: 'Attested' in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary." It is to be noticed that the word "attested", the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this 16 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 e 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. 8. "In every case the Court must be satisfied that the names were written animo attestandi", see Jarman on Wills, 8th Edn., p. 137. Evidence is admissible to show whether the witness had the intention to attest. "The attesting witnesses must subscribe with the intention that the subscription made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not," see Theobald on Wills, 12th Edn., p. 129. In Girja Datt v. Gangotrf, the Court held that the two persons who had identified the testator at the time of the registration of the will and had appended 9 their signatures at the foot of the endorsement by the sub-Registrar, were not attesting witnesses as their signatures were not put "animo attestandi". In Abinash Chandra Bidvanidhi Bhattacharya v. Dasarath Malo it was held that a person who had put his name under the word "scribe" was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a "scribe". In Shiam Sunder Singh v. Jagannath Singh, the Privy Council held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees. 9. The Indian Registration Act, 1908, lays down a detailed procedure for registration of documents. The registering officer is under a duty to enquire whether the document is executed by the person by whom it purports to have been 17 executed and to satisfy himself as to the identity of the executant, [Section 34(3)]. He can register the document if he is satisfied about the identity of the person executing the document and if that person admits execution. [Section 35(1)]. The signatures of the executant and of every person examined with reference to the document are endorsed on the document (Section 58). The registering officer is required to affix the date and his signature to the endorsements (Section 59). Prima facie, the registering officer puts his signature on the document in discharge of his statutory duty under Section 59 and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature. 10. The evidence does not show that the registering officer D.W. Kittoo put his signature on the document with the intention of attesting it. Nor is it proved that he signed the document in the presence of the executant. In these circumstances he cannot be regarded as an attesting witness, see Sunder Bahadur Singh v. Behari Singh. Likewise the identifying witnesses Sankaranarayana and Kaki Abdul Aziz put their signatures on the document to authenticate the fact that they had identified the executant. It is not shown that they put their signatures for the purpose of attesting the document. They cannot, therefore, be regarded as attesting witnesses.” 33. Further, in the matter of Janki Narayan Bhoir (supra), the Hon’ble Supreme Court has stated in para 12 that scribe of a deed cannot be attesting witness. Except the evidence of attesting witness no other witness has been examined by the plaintiff to prove the due execution of will, though with respect to claim PW-2 and PW-3 have been examined by him, however, it is only relevant to examine the attesting witnesses of the will which is sole basis of the claim of the of the plaintiff. 34. From the evidence of PW-4 who is scribe of the will he admitted that he did not know both the attesting witness of the will. He admitted that at the time of 18 recording of his statement before the Tahsil Court Dabhara he made his statement that he did not know Sukhobai. He also admitted that at the time of execution of will in place of Sukhobai any other lady would have come before him he did not know about it. He also have not stated that both the attesting witness of the will have died. He also stated that his affidavit of Order 18 Rule 4 has not been prepared as per his own statement. In his evidence he also stated that he has not mentioned any Khasra No. or area of the land of the Sukhobai. In the entire evidence of PW-4 it does not come that testatrix Sukhobai was of sound and disposing mind on the date of making the will and whether she she signed the will in presence of the attesting witness. 35. From the aforesaid consideration and as per law laid down by the Hon’ble Supreme Court, the judgment and decree passed by the learned first appellate Court appears to be erroneous as the plaintiff has failed to prove the due execution of will by examining any of its attesting witnesses out of two attesting witnesses as shown in the plaint and failed to prove the due requirement of its proof to claim title on the basis of the said will Ex.-P/11. As such the substantial question of law is answered in negative that the first appellate Court was not justified in upholding the validity of the will dated 10- 09-1984 Ex.-P/11 and it is answered accordingly. Consequently, the judgment and decree passed by the learned first appellate Court is set aside and the judgment and decree passed by the learned trial Court is restored and the suit of the plaintiff is dismissed. 36. The parties to bear their own cost(s). 37 The appellate decree be drawn accordingly. Sd/- (Ravindra Kumar Agrawal) Judge Aadil