Holding

A codicil forms part of the will and must be executed and proved in the same manner as a will; a Registrar of Deeds is not a statutory attesting witness unless he testifies, and registration does not obviate the need for proof under Section 68 of the Evidence Act.

Summary

The appellants, sons of the deceased Mast Ram, challenged the sale of their father's property by his widow Muni Devi, arguing that a statement recorded by the Registrar of Deeds on 21 May 1973 constituted a codicil that, if valid, limited the widow to a life estate. The Court examined whether a codicil must be executed and proved with the same formalities as a will, whether a Registrar of Deeds can act as an attesting witness, and whether registration of a document dispenses with the statutory proof required under Section 68 of the Evidence Act. It held that a codicil is part of the will and must satisfy the same execution and attestation requirements; a Registrar is not automatically an attesting witness and must be called to testify to satisfy Section 63 of the Succession Act; and registration does not remove the need for proof of execution and attestation. Since the codicil was not proved, it could not affect the will, and the appeal was dismissed.

Issues considered

Whether the formalities applicable to the execution of a will also apply to a codicil and whether a codicil must be proved in the same manner as a will.
Whether a Registrar of Deeds can be considered an attesting witness to a will or codicil.
Whether registration of a will or codicil dispenses with the requirement of proving execution and attestation under Section 68 of the Evidence Act.

Legislation cited

Indian Evidence Act, 1872s. 114, s. 68, s. 69
Indian Succession Act, 1925s. 2(b), s. 2(h), s. 63, s. 64, s. 70
Registration Act, 1908s. 52, s. 58, s. 59, s. 60

Subjects

codicilwillexecution formalitiesattesting witnessRegistrar of Deedsregistration actevidence actsuccession actlife estateproperty transfer

Judgment

A BHAGAT RAM AND ANR.
V.

SURESH AND ORS.

NOVEMBER 25, 2003
B
[R.C. LAHOTI AND ASHOK BHAN, JJ.]

Indian Succession Act, 1925-Sections 2(b), 2(h), 63, 64 & 701 Indian
Evidence Act, 1872-Sections 68 & 114-Will executed by testator attested
by two witnesses-Codicil, which is inconsistent with the Will, recorded
C and signed by testator in presence of Reigstrar of Deeds and attested by
one witness only-Registrar ofDeeds signing the codicil-Proofofexecution
of codicil-Held, Codicil is required to be executed and proved as will-
On facts, attesting witness and Registrar of Deeds were not examined in
witness box and hence the codicil not proved-Indian Registration Act,
D 1908; Sections 52 & 58.

Appellants are the sons of late M. Respondent No. 3 is the widow
of M.M. executed a Will in favour of respondent No. 3 appointing her
to be the sole heir and successor to the suit property. It was attested
E by two witnesses. The Will was presented for registration. Registrar
of Deeds read out the contents of the Will to the executant. M made
an oral statement to the Registrar which is in departure from the
contents of the Will. The statement was recorded and was signed by
M and attested by the one witness. The Registrar of Deeds has put his
signature below the endorsement which incorporates the statement
F made by M. Thereafter, the Will was registered. After the death of M,
respondent No. 3 got her name mutated over the suit property and
transferred it by a registered Deed of Sale in favour of respondent Nos.
1 and 2. The appellants filed a suit for declaration for title and for
issuance of preventive injunction by way of consequential relief against
G respondent Nos. 1 and 2. The appellants contended before the trial
court that the Will has to be read alongwith the statement made by
M. and recorded by the Registrar of Deeds; that the two formed part
of one document and hence, respondent No. 3, who succeeded only to
a life estate without any right to alienation, could no sell the suit
H property to respondents I and 2. The suit of the appellants was
BHAGAT RAM v. SURESH 217

dismissed by the trial court. The decree of the trial court has been A
upheld by first appellate court and High Court.

In appeal, the appellants contended that the statement by M
recorded by the Registrar of Deeds and attested by one witness
amounts to a codicil; that the Will and the codicil formed part of one
document; that the codicil has to be given effect to as duly executed
B
since it is registered -.llong with the Will; that the codicil does not
require attestation by two witnesses; that the codicil need not be
executed and proved under Indian Succession Act, 1925 and Indian
Evidence Act, 1872 like a Will; that the signature of the Registrar of
Deeds can be taken to be attestation by a second witness; that there. C
is nothing in law to debar a Registrar of Deeds from acting as an
attesting witness; that the Registrar can act in personal capacity as
attesting witness while registering the document in official capacity.

Dismissing the appeal, the Court D
HELD : 1.1. A codicil, though it may have been executed
separately and at a place or time different from the Will, forms part
of the Will. It would be anomalous to accept that though a Will is
required to be executed and proved as per the rules contained in the·
Indian Succession Act, 1925 and Indian Evidence Act, 1872, a document E
explaining, altering or adding to the Will and forming part of the Will
is not required to be executed and proved in the same manner. The
same rules of execution are applicable to a codicil which apply to a will
to which the codicil relates. The evidence adduced in proof of execution
of a codicil must satisfy the same requirements as apply to proof of F
execution of a will. [226-B-El

Williams, The Law of Wills, (1987) Edn. Vol. 1 Page 161, 165 and
Mantha Ramamurthi's Law of Wills, Sixth Edition Page 322, referred to.

1.2. So far as codicil is concerned, it can be said to have been G
dictated by M in the presence of the attesting witness and the Registrar
-~ of Deeds. The statement having, been recorded, M signed the same in
the presence of the attesting witness and the Registrar. The attesting
_,
j witness and the Registrar having seen M signing on the document, both
of them put their signatures op the document obviously with a view to H
218 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A attesting the signatures ofM. Butthe codicil cannot be held to be proved
merely by drawing upon imagination. It was necessary on the part of
the appellants to have examined the attesting witness and the Registrar
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
B Evidence Act. None of the two were produced in the witness box. The
codicil cannot be said to have been proved. (228-F-H; 229-A]

1.3. The Registrar of Deeds who has registered a document in
discharge of his statutory duty, does not become an attesting witness
to the deed solely on account of his having discharged the statutory
C duties relating to the registration of a document. Registration of any
will, and the endorsements made by ~he Registrar of Deeds in discharge
of his statutory duties, do not elevate him to the status of a 'statutory
attesting witness'. However, .a Registrar can be treated as having attested
fo a will if his signature or mark appears on the document akin to the
D one placed by an attesting witness and he has seen the tes1,ator sign or
affix his mark to the will or codicil or has received from the testator
a personal acknowledgment of his signature or mark and had also
signed :in the presence of the testator. In other words, to hE ·an attesting
witness; the Registrar should have attested the signature of the testafor
E in the manner contemplated by clause (c) of Section 63 oftt1e Succession
Act. No particular form of attestation is provided. It will ~111 depend on
the facts and circumstances of a case by reference to which it will have
to be answered if the Registrar of Deeds fulfils the character of an
attesting witness also by looking at the manner in which the events have
F actually taken place at the time of registration and the part played
therein by the Registrar. A Registrar of Deeds before he be termed an
attesting witness, shall have to be called in the witness box. The court
must feel satisfied by his testimony that what he did satisfies the
. i
requirement of being an attesting witness. [229-B-F]

G Dharam Singh v. Asa & Anr., [1990) Supp. sec 684; ML. Abdul
Jabhar Sahib v. H V. Venkata Sastri & Sons; [1969) 3 SCR 513 and Beni
Chand (since dead) now by Lrs. v. Smt. Kam/a Kunwar, fl977) l SCR 578, .
referred to.

Gurnam Singh v. _Smt. Ass Kaur & Oes., AJR (19?7) Punjab &
.......
'

H
BHAGAT RAM v. SURESH 219

Haryana 103; Lal Singh & Anr. \'. Bant Singh & Ors., AIR (1983) Punjab A
& Haryana 384; Labh Singh & Ors. v. Piara Singh (deceased by LR.s.)
& Anr., AIR (1984) Punjab & Haryana ·270; Gurdev Singh & Ors. v.
Smt. Shanti & Ors., AIR (1999) Punjab & Haryana NOC 110 and
Mehnga & Ors. v. Major Singh & Anr., (1995) 2 Vol. 88 PUN. L.R. 24,
referred to. B
1.4. Registration of a document does not dispense with the need
of proving the execution and attestation of a document which is
required by law to be proved in the manner as provided in Section 68
of the Evidence Act. Such particulars as are referred to in sections 52 C
and 58 of the Registration Act, 1908 are required to be endorsed by
Registrar along with his signature and date on document under section
59 and then certified under Section 60 of the Registration Act. A
presumption by reference to section 114 (Illustration (e)) of the
Evidence Act shall arise to the effect that the events contained in the D
endorsement of registration, were regularly and duly performed and
are correctly recorded. None of the endorsements, required to be made
by the Registrar of Deeds under the Registration Act, contemplates the
factum of attestation within the meaning of Section 63(c) of the
Succession Act or Section 68 of the Evidence Act being endorsed or E
certified by the Registrar of Deeds. The endorsements made at the time
of registration are relevant to the matters of registration only. On
account of registration of a document, including a will or codicil, a
presumption as to correctness or regularity of attestation cannot be
drawn. Where in the facts and circumstances of a given case, the
Registrar of Deeds satisfies the requirement of an attesting witness, he F
must be called in the witness box to depose to the attestation. His
evidence would be liable to be appreciated and evaluated like the
testimony of any other attesting wit~ess. (229-H; 230-A, E-H; 231-A)

Kunwar Surendra Bahadur Singh & Ors. v. Thakur Behari Singh & G
Ors., AIR (1939) PC 117, referred to.

1.5. In the instant case, The codicil is not proved. The codicil
cannot have the effect of explaining, altering or adding to the depositions
made by the Will. 1231-B-C] H
220 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 13711 of
1996.

From the Judgment and Order dated 21.5.96 of the Himachal Pradesh
High Court in R.S.A. No. 234 of 1987.

B E.C. Agrawala and Manu Krishnan for the Appellants.

B.B. Sawhney, Ritesh Kumar and Ms. Indra Sawhney for the
Respondents.

C The Judgment of the Cou1t was delivered by

R.C. LAHOTI, J. Bhagat Ram and Chhaju Ram , the appellants, are
the sons of late Mast Ram. Muni Devi, respondent No. 3, is th€: widow of
late Mast Ram. It is not clear whether the two appellants were born to Mast
Ram from Muni Devi or he had another wife too, but that is not very
D material for the present case. Suresh and Tilak Raj respondents No. l and
2, are the purchasers of the suit property from Muni Devi.

On 16.5.1973, late Mast Ram executed a Will in favour of Muni Devi
appointing her the sold heir of his property. The Will also sta·:es that the
E appellants have been living separately from Mast Ram for a period of
26-27 years prior to the date of the Will and they have been given other
property proportionate with their share and as Muni Devi was residing with
him and also serving him in his old age, he was appointing ber the sole
heir and successor of his property. The Will, as executed on 16.5.1973,
F bears the signature of Mast Ram a'ld 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.
. ..
The Will was presented for registration on 21.5.1973. It ~1ppears that
the registration of the Will was done on commission as the endorsement
'
.;
G made by the Registrar of Deeds on the Will indicates that the Will was
presented by the executant at 4.30 p.m. at his residence. Now commences
the controversy.

Vijay Singh Negi, the Registrar of Deeds, read but and explained the
H contents of the Will to the executant Mast Ram who admitted the execution

•
BHAGAT RAM v. SURESH [LAHOTI, J.] 221

of the Will but made an oral statement to the Registrar which is in departure A
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 B
statement made by Mastram. Translated into English, the endorsement
made by the Regis\rar incorporating the statement of Mast Ram reads as
under :

"The contents of the Will was read over and explained to Shri
Mast Ram and he admitted the contents of the same as correct. C
But he stated that the land shall remain in the name of the
executrix during her life time Bhagat Ram and Chajju Ram will
serve her. After her death it shall go to the share of-Bhagat Ram
and Chajju Ram and till that time they shall have no right in the
property mentioned in this Registered document. Identification of D
executor of this will was made by Shri Ram Dutt resident of
Nehnar .in may presence.

Sd/- Mast Ram Sd/- and Seal
Sd/- Ram Dutt Sub-Registrar
E
Jubal,

Dated 21.5 .1973"

(N.B. Translation is as furnished by the appellant and not disputed F
by the respondents)

Thereafter the Will was registered.

Mast Ram died. The Will came into effect. Muni Devi got her name
mutated over the agricultural land left by late Mast Ram in the revenue G
papers. Muni Devi, claiming the vesting of late Mast Ram's property
exclusively in herself and thereby having acquired sole and exclusive
ownership in the property of late Mast Ram, transferred the land by a
registered Deed of Sale in favour of respondents No. I and 2. The .Sale
Deed was executed and registered on 29/31.5.1975. The appellants filed H
222 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A a civil suit for declaration of title, and for issuance of preventive injunction
by way of consequential relief, against the respondents No. 1 and 2, also
impleading the respondent No. 3 as a party to the suit. According to the
plaintiffs, the Will dated J 6.5.1973, registered on 21.5.1973, has to be read
alongwith the statement made by late Mast Ram and recorded by the
B Registrar of Deeds. The two formed part of one document and have to be
read together and if so read Muni Devi succeeded only to a life estate
without any right to alienation and the reversion vested in the appellants.
Muni Devi could not have sold away the land and, therefore, no right and
title in the property accrues to the respondents No. I and 2. Obviously, the
defendants defended the Will and submitted that the Will was only that part
c of the document which was executed on 16.5.1973 .while the statement
made before the Registrar on 21.5.1973 was liable to be ignored so far as
the efficacy of the Will dated 16.5.1973 is concerned.

The suit filed by the plaintiffs has been dismissed by the trial Court.
D The decree of the trial Co mt has been upheld by the first appellate Court
as also by the High Court. The plaintiffs have filed this appeal by special
leave.

We have heard Shri E.C. Agrawala, the learned counsel for the
E appellants and Shri B.B. Sawhney, the learned senior counsel for the
respondents No. I 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
F 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 Jaw, to a codicil. In the submission of the
G learned counsel for the appellants, the Will has been registered alongwith
the codicil forming an integral part thereof and it is not necessary for a
codicil to be attested by two witnesses. Assuming that a codicii is required
to be attested by two witnesses in the same manner as a Will is required
to be made then the signature of Mast Ram placed alongwith the signature
H of Ram Dutt, the attesting witness, and the signature of Registrar of.Deeds
BHAGAT RAM v. SURESH [LA~OTI, J.] 223
side by side, amounts to attestation of codicil a11~, :masmuch as Ram Dutt A
and Vijay Singh Negi, the Registrar of Deeds, ·have both attested the
codicil, the codicil has to be given effect to as duly executed.

Ram Dutt and Vijay Singh Negi, the Registrarj~f Deeds, none has
been examined in the Court in proof of attestation.;>!the codicil. It was B
submitted by the learned counsel for the appellants that the registration of
the document dispenses with the necessity of examining the attesting
witnesses and the endorsement made by the Registrar on the Will and .
codicil, incorporating the admission of the testator on the point of execution
of the Will and as to which presumption of regularity and correctness
attaches dispenses with the need of formally proving the Will and the C
codicil which must be read together as.parts of one one the same document.

Three questions arise for consideration in this appeal :

(I) Whether the formalities attaching with the execution of Will need to D
be carried out in relation to a codicil also, and if so, whether a codicil is
also required to be proved in the same manner as a Will?

(2) Whether a Registrar of Deeds can also be an attesting witness?

(3) Whether registration of a Will or codicil dispenses with the need of E
proving the execution and attestation of Will in the manner required by
Section 68 of the Evidence Act?

Question - 1 :

'Will' and 'codicil' are defined respectively in clauses (h) and (b) of F
Section 2 of the Indian Succession Act, 1925 as under :

"(h) 'Will' means the legal declaration of the intention of a testator
with respect to his property which he desires to be carried into
effect after his death; G
(b) 'codicil' means an instrument made in relation to a will, and
explaining, altering or adding to its depositions, and shall be
deemed to form part of the will;"

Section 63 provides, by enacting the rules, for the manner in which H
224 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A an unprivileged will (the class to which the Will in question belongs) shall
be executed. The rules are as under :

Succession Act, 1925

63. Execution of unprivileged wills. Every testator, not being a
B 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
c 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
a
it was intended thereby to give effect .to the writing as will.
D
(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 seen some other person sign the will, in the presence and by
the direction of the testator, or has received from the testator a
E 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."
F It is also relevant to refer to Section 70 which provides that no
unprivileged will or codicil, nor any part thereof, shall be revoked
otherwise than by marriage, or by another will or codicil, or by some
writing. declaring an intention to revoke the same and executed in the
manner in which an unprivileged will is hereinbefore required to be
G executed, or by the burning, tearing, or otherwise destroying the same by
the testator or by some person in his presence and by his direction with
the intention of revoking the same. (emphasis supplied) In Section 64 of
the Succession Act also we find a reference to due attestation of a Will
or codicil both. It is provided that if a testator, in a will or codicil duly
H attested, refers to any other document then actually written as expressing
BHAGAT RAM v. SURESH [LAHOTI, J.] 225

any pa11 of his intentions, such document shall be deemed to form a part A
of the will or codicil in which it is referred to. (emphasis supplied)

According to Section 68 of the Evidence Act, 1872 a document
required by law to be attested, which a will is, shall not be used as evidence
until one attesting witness at least has been called for the purpose of B
proving its execution, if available to depose and amenable to the process
of the Cou11. The proviso inse1ted in Section 69 by Act No. 31 of 1926
dispenses with the mandatory requirement of caJµng an attesting witness
in proof of the execution of any document to w~ich Section 68 applies if
it; has been registered in accordance with the provisions of the Indian
Registration Act, 1908 unless its execution by the person by whom it C
purports to have been executed is specifically denied. However, a Will is
excepted from the operation of the proviso. A Will has to be proved as
required by the main part of Section 68. It is true that Section 68 of
Succession Act does not specifically speak of codicil and that omission has.
prompted the learned counsel for the appellants to urge that the applicability D
of Section 68 abovesaid should be treated as confined to the execution of
Wills only. A codicil need not necessarily be attested and, therefore, a
codicil need not be proved in the manner contemplated by the main part
ofSectiqn 68 of the Evidence Act; a codicil will attract applicability of the
proviso, submitted the learned counsel for the appellants. In our opinion, E
such a submission cannot be countenanced. Williams states in The Law of
Wills, Vol. 1 (1987 Edn.)

"Codicils which in form and execution are similar to a will are
useful for the purpose of making slight alterations to a will, such
as a change of executors or deleting some specific gift. Codicils. F
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 paits
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
a,lteration is intended, it may, in cases of urgency, be more G
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)" H
226 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A Mantha Ramamurthi 's Law o(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.

Any Indian decision or authority taking a view, contrary to the one
B 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 codicil, though it may have been executed separately
and at a place or time different from the Will, forms part of the related
Will. That being the nature and character of codicil, flowing from the
C definition itself, it would be anomalous to accept the contention that though
a Will is required to be executed and proved as per the rules contained in
the Succession Act and the Evidence Act but a document explaining,
altering or adding to the will and forming part of the will is not required
to be executed or proved in the same manner. Section 70 of the Succession
D Act re-enforces this proposition inasmuch as revocation of an unprivileged
Will or codicil is placed at per in the matter of manner of execution.

We hold that the same rules of execution are applicable to a codicil
which apply to a will to which the codicil relates. So also, the evidence
E adduced in proof of execution of a codicil must satisfy the same requirements
as apply to proof of execution of a will.

Question 2 :

The learned counsel for the appellants submitted that there is nothing
F in law to debar a Registrar of Deeds from acting as an attesting witness
also. He submitted that a Registrar of Deeds, is also a person competent
to be a witness, and can act in two capacities. He can be an attesting witness
and while attesting a document he would not be deemed to be acting in
his official capacity. While registering the document, he would be
G discharging his official duty as a Registrar. In his personal capacity he can
be an attesting witness and that is what he did when he signed below the
statement made by Mast Ram on 21.5.1973 and after recording the same,
attested the statement having seen Mast Ram sign the document in the
presence of Ra:n Dutt, the other attesting witness and himself, Reliance was
H placed on a series of decisions by the High Court of Punjab and Haryana
BHAGAT RAM v. SURESH [LAHOTI, J.] 227

namely Gurnam Singh v. Smt. Ass Kaur & Ors., AIR (1977) Punjab & A
Haryana rn3, 106, Lal Singh & Anr. v. Bant Singh & Ors., AIR (1983)
Punjab & Haryana 384, 385, Labh Singh & Ors. v. Piara Singh (deceased ·
by L. Rs.) & Anr., AIR (1984) Punjab & Haryana, 270, 273, Gurdev Singh
& Ors. v. Smt. Shanti & Ors., AIR (1989) NOC 110 (Punjab & Haryana)
and Mehnga & Ors. v. Major Singh & Anr., (1985) 2 Vol. 88 Pun. L.R. B
24. The learned senior counsel for the respondents No. I and 2 disputed
the correctness of the submission and placing reliance on a decision of this
Court in Dharam Singh v. Aso & Anr., [1990] Supp. SCC 684 submitted
that a Registrar of Deeds can never be an attesting witness.

We have carefully perused the submissions so made. In the case of C
Dharam Singh (supra), the two witnesses did ryot 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 D
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 E
)'
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 ML. Abdul Jabhar Sahib v. H. V. Venkata Sastri & Sons, [1969]
3 SCR 513 and Beni Chand (since dead) now by Lrs. v. Smt. Kam/a Kumar,
[1977] l SCR 578. In Abdul Jabhar 's case this Court has held by reference F
to the definition of 'attested' as given in Section 3 of the Transfer of
property Act, 1882 that to be an attesting witness it is essential that the
witness should have put his signature animo attestandi, i.e. for the purpose
of attesting that he has seen the executant sign or has received from him
a personal acknowledgement 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 G
or an identifier or a registering officer he is not an attesting witness. Prima
facie the registering officer puts his signature on the document in discharging
of his statutory duty under Section 59 of the Registration Act and not for
the purpose of attesting it or certifying that he has received from the
executant a personal acknowledgement of his signature. The evidence H
228 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A adduced in the case did not show the registering officer having signed the
document with the intention of attesting it nor was it shown that the
registering officer signed it in the presence of the executant. In these
circumstances, the Cou1t concluded that the registering officer was not an
attesting witness. Beni Chand's case (supra) deals with general principles
B relating to execution of the Will and does not deal with the question
whether a registering officer can be an attesting witness or not. The ratio
of the several decisions by the High Court of Punjab and Haryana cited
at the Bar is that, in the facts and circumstances of a given case, the
Registrar may also fulfill the character of an attesting witness as required
C by law and if, on entering into witness box as required by. Section 68 of
the Evidence Act, he proves by his testimony the execution of document
by deposing to having witnessed himself the proceedings as contemplated
by Section 63 of the Succession Act, he can be an attesting witness. The
certificate of registration under Section 60 of the Registration Act, 1908
raises a presumption under Section 114 illustration (e) of the Evidence Act
D that he had regularly performed his duty and therefore the facts spelled out
by the endorsements made under Sections 58 and 59 of the Registration
Act may be presumed to be correct without formal proof thereof. The
duties discharged by the registering officer do not include attestation or
verification of attestation of will as required by the rules enacted by Sectiop
E 63 of the Succession Act. An endorsement by registering officer is not by
itself a proof of the will having been duly executed and attested. ...

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 respondents No. I and 2. So far as the codicil is concerned, it can
F 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
G 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
H execution and attestation of the codicil in the manner required by Section
BHAGAT RAM v. SURESH [LAHOTI, J.] 229
63 of the Succession Act read with Section 68 of the Evidence Act. None A
of the two were produced in the witness box. The codicil cannot be said
to have been proved.

The Registrar of Deeds who has registered a document in discharge
of his statutory duty, does not become an attesting witness to the deed B
solely on account of his having discharged the statutory duties relating to
the registration.ofa document. Registration of any will, and the endorsements
made by the Registrar of Deeds in discharge of his statutory duties, do not
elevate him to the status of a 'statutory/ attesting witness'. However, a
registrar can be treated as having attested to a will if his signature or mark C
appears on the document akin to the one placed by an attesting witness and
he has seen the testator sign or affix his mark to the will or codicil or has
received from the testator a personal acknowledgement of his signature or
mark and he has also signed in the presence of the testator. In other words,
to be an attesting witness, the registrar should have attested the signa~ure
·~
of the testator in the manner contemplated by clause (c) of Section 63 of D
the Succession Act. No particular form of attestation is provided. It will
all depend on the facts and circumstances of a case by reference to which
it will have to be answered if the registrar of deeds fulfils the character
of an attestit'lg witness also by looking at the manner in which the events
have actually taken place at the time of registration and the· part played E
therein by the Registrar.

A Registrar of Deeds before he be termed an attesting witness, shall
have to be called in the witness box. The court must feel satisfied by his
testimony that what he did satisfies the requirement of being an attesting F
witness. This is the view taken by the High Court of Punjab in the several
decisions cited by the. learned counsel for the appellants and also in the
Division Bench Decisions of the High Court of Calcutta in Earnest Bento
Souza v. Johan Francis Souza & Ors., AIR [1958) Calcutta 440, and of
the Orissa High Court in Kotni R.N Subudhi v. V.R. L. Murthy Raju, AIR
(1961) Orissa 180. G
Question-3 :

Registration of a document does not dispense with the need of
proving the execution and attestation of a document which is required by H
230 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A law to be proved in the manner as provided in Section 68 of the Evidence
Act. Under Section 58 of the Registration Act the Registrar shall endorse
the following particulars on every document admitted to -registration :

(I) the date, hour and place of presentation of the document for
registration :
B
(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 or agent of any person,
the signature and addition of such representative, assign or
C agent;

(3) the signature and addition of every person examined in
reference to such document under any or the provisions of
this· Act, and

D (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.
E
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)]
F of the Evidence Act shall arise to the effect that the events contained in
the endorsement of registration, were regularly and duly performed and are
correctly recorded. None of the endorsements, require to be made by the
Registrar of Deeds under the Registration Act, contemplates the factum of
_attestation within the meaning of Section 63(c) of the Succession Act or
Section 68 of the Evidence Act being endorsed or certified by the Registrar
G of Deeds. The endorsements made at the time of registration are relevant
to the matters of the registration only [See : Kunwar Surendra Bahadur
Singh & Ors. v. Thakur Behari Singh & Ors., A.LR. (1989) Privy Council
117]. On account of registration of a document, including a will or codicil,
a presumption as to correctness or regularity of attestation cannot be drawn.
H Where in the facts and circumstances ofa given case the Registrar of Deeds
BHAGAT RAM v. SURESH [LAHf>TI, J.] 231

satisfies the requirement of an attesting witness, he must be called in the A
witness box to depose to the attestation. His evidence would be liable to
be appreciated and evaluated like the testimony of any other attesting
witness.

Conclusion :
B
So far as the Will dated 16.5.1973 is concerned, its execution i$
neither denied nor disputed. The factum of the Will dated 16.5.1973 having
been duly executed and attested was an admitted fact. The disputed fact
was the execution and attestation of the codicil dated 21.5.1973. The
codicil is not proved. The codicil cannot have the effect of explaining C
altering or adding to the depositions made by the Will dated 16.5.1973.

The appeal is held devoid of any merit and is dismissed.

B.S. Appeal dismissed.