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TMI Blog2003 (11) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... him in his old age, he was appointing her the sole heir and successor of his property. The Will, as executed on 16.5.1973, bears the signature of Mast Ram and is attested by two witnesses namely Sanya Brahman and Kewal Ram Brahman who have respectively thumb marked and signed the Will by way of attestation. 3. The Will was presented for registration on 21.5.1973. It appears that the registration of the Will was done on commission as the endorsement made by the Registrar of Deeds on the Will indicates that the Will was presented by the executed at 4.30 p.m. at his residence. Now commences the controversy. 4. Vijay Singh Negi, the Registrar of Deeds, read out and explained the contents of the Will to the executant Mast Ram who admitted the execution of the Will but made an oral statement to the Registrar which is in departure from the contents of the Will. Just below the endorsement relating to presentation of the Will, the Registrar has recorded the statement made by Mast Ram. This statement is signed by Mast Ram and attested by one witness namely Ram Dutt. Vijay Singh Negi, the Registrar of Deeds, has also put his signature below the endorsement which incorporates the statement ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiffs has been dismissed by the trial Court. The decree of the trial Court has been upheld by the first appellate Court as also by the High Court. The plaintiffs have filed this appeal by special leave. 8. We have heard Shri E.C. Agrawala, the learned counsel for the appellants and Shri B.B. Sawhney, the learned senior counsel for the respondents No. 1 and 2. It was conceded at the Bar that the document executed by late Mast Ram and attested by two witnesses on 16.5.1973 is a Will. There is no controversy raised at any stage of the proceedings that the said document was a Will duly executed by the testator and attested by the witnesses. The controversy centers around the proof and effect of the statement made by Mast Ram before the Registrar of Deeds on 21.5.1973 and incorporated by the Registrar in his endorsement made on the will. It was also conceded to at the Bar that the statement of Mast Ram dated 21.5.1973 recorded by the Registrar and attested by the witness Ram Dutt may amount, in the eye of law, to a codicil. In the submission of the learned counsel for the appellants, the Will has been registered alongwith the codicil forming an integral part thereof and it is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of unprivileged wills. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:- (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark 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. (c) the will shall be attested by two or more witnesses, each of whom has seen to the will or has seem some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature 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 witness be present at the same time, and no particular form of attestation shall be necessary. 13. It is also relevant to refer to Section 70 which provides that no unpriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a will are useful for the purpose of making slight alternations to a will, such as a change of executors or deleting some specific gift. Codicils may be used for making any alteration in a will, but it is so easy to fail to see that a substantial alteration so made will affect parts of the will other than that intended to be affected, that it is a wise practical rule to execute a new will whenever any substantial alteration is intended, it may, in cases of urgency, be more practical to execute a codicil than to prepare a new Will, ..... the codicil is executed and attested in the same way as a will. (at p.161) Execution of codicil. The same rules apply as in the case of wills. (at p. 165) 15. Mantha Ramamurti's Law of Wills (Sixth Edition) also states (at page 322) that a codicil for its validity, must be executed and attested in the same manner as a Will. 16. Any Indian decision or authority taking a view, contrary to the one taken by the abovesaid learned authors, has not been brought to our notice. Codicil, as defined, is an instrument made in relation to a Will. It has the effect of explaining, altering or adding to the dispositions made by a Will. By fiction of law, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tness. 19. We have carefully perused the submissions so made. In the case of Dharam Singh (supra), the two witnesses did not support the execution of the Will. The trial Court had relied upon the statement of the registering authority. The decision of the trial Court was reversed by the first appellate Court and the decision by latter was upheld by the High Court. In a short judgment this Court held that the appellate Court and High Court were right in their conclusion that the Registrar could not be a statutory attesting witness. There is no further discussion. Presumably what was sought to be contended before this Court was that the Registrar having discharged his statutory duty ought to be treated as a statutory attesting witness; for the Registrar would not register the document unless execution of the document was admitted by the executant and acknowledged to the Registrar. In Dharam Singh's case the Court has relied on two earlier decisions of this Court in H.L. Abdul Jabhar Sahib v. H.V. Venkata Sastri Sons, [1969]3SCR513 and Beni Chand (since dead) now by Lrs. v. Smt. Kamla Kunwar, [1977]1SCR578 . In Abdul Jabhar's case this Court has held by reference to the defini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by registering officer is not by itself a proof of the will having been duly executed and attested. 20. However, facts of the present case, are distinguishable from the facts of the Supreme Court decisions referred to by the learned senior counsel for the respondent No. 1 and 2. So far as the codicil is concerned, it can said to have been dictated by Mast Ram in the presence of Ram Dutt, the witness and Vijay Singh Negi, the Registrar of Deeds. The statement having been recorded, Mast Ram signed the same in the presence of Ram Dutt and Vijay Singh Negi. Ram Dutt and Vijay Singh having seen Mast Ram signing the document, both of them put their signatures on the document obviously with a view to attesting the signatures of Mast Ram. This is what appears to have taken place by a look at the contents of the codicil below the Will. But the codicil cannot be held to be proved merely by drawing upon imagination. It was necessary on the part of the appellants to have examined Ram Dutt and/or Vijay Singh Negi so as to prove the execution and attestation of the codicil in the manner required by Section 63 of the Succession Act read with Section 68 of the Evidence Act. None of the two were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to registration: (1) the date, hour and place of presentation of the document for registration; (2) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign of agent of any person, the signature and addition of such representative, assign or agent; (3) the signature and addition of every person examined in reference to such document under any of the provisions of this Act, and (4) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution. 24. Such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by Registrar alongwith his signature and date on document under Section 59 and then certified under Section 60. A presumption by reference to Section 114 (Illustration (e)) of the Evidence Act shall arise to the effect that the events containing in the endorsement of registration, were regularly and duly performed and are correctly recorded. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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