Holding

The Court held that (i) an application for additional evidence filed after ten years cannot be entertained under Order 41 Rule 27, and (ii) a scribe’s signature does not meet the statutory attestation requirement, so the will is invalid.

Summary

The appellants filed a partition suit claiming title to a half of a property based on a will executed by Masane Gowder in favour of two sisters. The respondents contested the will, arguing that the property was joint family property and that the will was not properly attested. The trial court held the will unproved; the High Court initially allowed, then rejected, an application for additional evidence ten years after the appeal was filed. The Supreme Court considered (i) whether Order 41 Rule 27 permits admission of fresh evidence after such a delay and (ii) whether a scribe’s signature can satisfy the statutory attestation requirement for a will. It held that the application for additional evidence was rightly rejected and that a scribe is not an attesting witness under the Indian Succession Act, Evidence Act and Transfer of Property Act, rendering the will invalid. Consequently, the appeals were dismissed.

Issues considered

Whether an application for additional evidence filed ten years after the filing of an appeal can be entertained under Order 41 Rule 27 of the CPC.
Whether the signature of a scribe can satisfy the statutory requirement of attestation for a will under the Indian Succession Act, 1925, the Evidence Act, 1872 and the Transfer of Property Act, 1882.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 27
Indian Evidence Act, 1872s. Section 68
Indian Succession Act, 1925s. Section 63
Transfer of Property Act, 1882s. Section 3

Subjects

partition suitwill validityattestationscribeadditional evidenceOrder 41 Rule 27onus probandianimo attestandiIndian Succession ActEvidence ActCivil Procedure Code

Judgment

A N. KAMALAM (DEAD) AND ANR.
v.
AYY ASA MY AND ANR.

AUGUST 3, 2001

B (A.P. MISRA AND UMESH C. BANERJEE, JJ.)

Civil Procedure Code 1908-0rder Xll Rule 27-Application for
production of additional evidence-Filed I 0 years after the appeal was filed-
C Held, cannot be entertained.

Wills

Indian Evidence Act, 1872-Section 68-Transfer ofProperty Act, 1882-
Section 3-lndian Succession Act, 1925-Section 63-Attestation--Scribe-
D Animo attestandi-Held, statutory requirement of attestation cannot be
transposed in favour of scribe.

Will-Onus probandi-Document requiring attestation-Held,
propounder has to prove its execution by examining at/east one witness.

Words and Phrases- 'Animo attestandi '-"Onus probandi"-Meaning
E of

The appellants filed a suit for partition of suit property into two equal
shares by metes and bounds with demarcation of proper boundary and after
so partitioned, one half share of the suit property should be allotted to the
p plaintiffs on the grc•und that a half portion of the eastern side has been
purchased by the plaintiff from two sisters who inherited the property by
virtue of a will executed by their father one M in their favour, and that after
the purchase of the property, the plaintiff had obtained possession of the
property.

G The respondents disputed the right of disposition on the basis of the will
since the suit property was not and cannot by any stretch be termed to be
the personal property of M, that the suit property was purchased from the
funds of the joint family, that it has always been treated as joint family
property and as such 'M' had no right to execute a will over the half portion
of the suit property on the eastern side; neither he was eligible to sell the same
H 272
N. KAMA LAM (DEAD) AND ANR. v. AYYASAMY AND ANR. 273
and that the suit properties have never been under the possession and A
enjoyment of the vendors.

The subordinate judge held that the suit property is the self-earned
property of 'M', but that the Will has not been proved as per law with
sufficient evidence that 'M' has executed the Will, and that the documents
produced depict that the Will cannot be termed to be a "true one" and the B
same "will not bind" the respondents.

While the appeal was pending in the High Court an application was
moved before the High Court to allow additional evidence to be produced by
examining one 'G' who was one of the attestors. Single Judge allowed the C
application for additional evidence, recorded the contents of the affidavit filed
in support of the application for additional evidence, and permitted the party
to lead oral evidence and in that perspective directed the subordinate judge
to examine the attestor and to submit his evidence before the court.

An appeal preferred by respondents against the same was allowed by .D
the Division Bench with a direction that the application be heard alongwith
the main appeal. Subsequently, the application for additional evidence was
dismissed and the contention of the appellants as regards execution of the Will
was rejected.

In appeal to this Court, it was contended that the scribe also can E
discharge the function of attesting witness and since the scribe has subscribed
his signatures on the Will, the lacuna if any, of not having the evidence of the
attesting witnesses stands rectified and both the trial judge and High Court
were in error in not placing reliance thereon; that in the event of there being
an intent to attest, that itself should be sufficient compliance of the requirement
of law,' and that there is existing a responsibility on to the law Courts to deal F
with the matter having due regard to the concept of justice and technicalities,
would not sub-serve the ends of justice.

- Dismissing the appeals, the Court

HELD : I. A plain reading of Order 41 Rule 27 would depict that the
rejection of the claim for production of additional evidence after a period of
G

10 years from the date of filing of the appeal cannot be termed to be erroneous
or an illegal exercise of discretion. The three limbs of Rule 27 do not stand
attra.cted. The finding of the High Court cannot be found fault with for
rejecting the prayer of the appellant for additional evidence made in the H
274 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A belated application. (284-G, H; 285-AI

The Municipal Corporation ofGreater Bombay v. Lala Pancham and Ors.,
AIR (1965) SC 1008 and Smt. Pramod Kumari Bhatia v. Om Prakash Bhatia
and Ors., AIR (1980) SC 446, referred to.

B 2. The effect of subscribing a signature on the part of the scribe cannot
be identified to be of same status as that of the attesting witnesses. The
signature of the attesting witness on a document, requiring attestation, is a
requirement of the statute; thus it cannot be equated with that of the scribe.
(287-G(

C H. Venkata Sastri and Sons and Ors. v. Rahilna Bi and Ors., AIR (1962)
Madras 111 and Shamu ?attar v. Abdul Kadir, ILR 35 Mad. 607 (PC), referred
to.

Burdet v. Spilsbury, (1842-43) 10 Cl and F 340, referred to.

D Williams on Wills, referred to.

3. The animus to attest, is not available, so far as the scribe is concerned;
he is not a witness to the Will but a mere writer of the Will. The statutory
requirement cannot thus be transposed in favour of the writer, it rather goes
E against the propounder since both the witnesses are named therein with
detailed address and no attempt has been made to bring them or to produce
them before the court so as to satisfy the judicial conscience. Presence of scribe
and his signature' appearing on the document does not by itself be taken to
the proof of due attestation unless the situation is so expressed in the document
itself - this is again however not the situation existing presently in the matter
F under consideration. The evidence of one person 'A' cannot dispute the
requirement of the statute when 'A' himself has specifically identified as writer
and not as a witness though in his evidence, he tried to improve the situation,
but this improvement however, cannot said to be accepted. The Will thus fails
to have its full impact and its effect stands out to be nonest.
(290-D-E; 295-G-H; 296-A(
G
Jagannath Khan and Ors. v. Bajrang Das Agarwalaand Ors., AIR (1921)
Calcutta 208; Badri Prasad v. Abdul Karim, (1913) 35 All 254; Ram Bahadur
Singh v. Ajodhya Singh, (1916) 20 C.W.N. 699; Raj Narain Ghose v. Abdur
Rahim, (1901) 5 C.W.N. 454; Dinamoyee Debi v. Ban Behari Kupur, (1902) 7
H C.W.N. 160; Shamu Pal/er v. Abdul Kadir Ravuthan, (1912) 35 Mad. 607; P.A.
N. KAMALAM(DEAD)ANqANR. v. AYYASAMY ANDANR. 275

Alagappa Chettyar v. Ko Kala Pai, AIR (1940) Rangoon 134; Girija Dutt v. A
Gangori Dutt, AI~ (1955) SC 346; Bidvanidhi. Bhattacharya v. Dasarath Malo,
ILR 56 Cal. 598; Shiam Sunder Singh v. Jagannath Singh, 54 MW 43 and M.l.
Abdul Jabhar Sahib v. H. V. Venkata Sastri & Sons and Ors., 11969) 3 SCR 513,
referred to.

4. The 'onus probandi', in every case is upon the party propounding B
the Will and he may satisfy the court's conscience that the instrument as
propounded is the last Will of a free and capable testator, meaning thereby
obviously; lhat the testator at the time when he subscribed his signature on
to the Will had a sound and disposing state of mind and memory and
ordinarily, however, the onus is discharged as regards the due execution of C
the Will when the propounder leads evidence to show that the Will bears the
signature and mark of the testors and that the Will is duly attested. This
attestation, however, shall have to be in accordance with Section 68 of the
Evidence Act which requires that if a document is required by law _to be
attested, it shall not be used as evidence until at least one attesting witness
has been called for the purpose of proving its execution and the same is so D
however, in the event of there being an attesting witness alive and capable of
giving the evidence. The law is also equally well-settled that in the event of
there being cin;umstances surrounding the execution of the Will, shrouded
in suspicion, it is the duty paramount on the part of the propounder to remove
that suspicion by leading satisfactory evidence. (277-C, D, E, Fl E
Seth Beni Chand (since dead) by LRs v. Smt. Kam/a Kunwar and Ors.,
11976) 4 SCC 544 and H. Venkatachala Iyengar v. B.N. Thimmaramma and Ors.,
11959) Supp. I SCR 426, referred to.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 3164- f
3166 of 1997.

From the Judgment and Order dated 11.2.97 of the Madras High Court
in L.P.A. No. 117-119 of 1996.

K.V. Vishwanathan, Atul Sinha and K.V. Venkataraman for the G
Appellants.

R. Sundaravardan, R.B. Suresh, Vipin Nair, and Nikilesh R. for the
Respondents.

The Judgment of the Court was de livered by H
276 SUPREME COURI REPORTS [2001) SUPP. I S.C.R.

A BANERJEE, J. The Iatin expressions 'onus probandi' and 'animo
attestandi' are the two basic features in the matter of civil court's exercise of
testamentary jurisdiction: Whereas 'onus prcibandi' lies in every case upon the
party propounding a Will - the expression 'animo attestandi' means and implies
animus to attest: to put it differently and in common parlance it means intent
B to attest. As regards the latter maxim, the attesting witness must subscribe with
the intent that the ·subscription of the signature made stands by way of a
complete attestation of the will and the evidence is admissible to show whether
such was the intention or not (see in this context Theobald on Wills 12th Ed.
Page 129). This Court in the case of Girja Datt v. Gangotri Datt, AIR (1955)
SC 346 held that two persons who had identified testator at the time of
C registration of the will and had appended 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 an earlier decision of the
Calcutta High Court in Abinash Chandra Bidvanidhi Bhattacharya v. Dasarath •
Malo : l.L.R 56 Cal.598, 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
D only for the purpose of authenticating that he was a "scribe". In the similar
vein, the Privy.Council in Shiam Sunder Singh v. Jagannath Singh (54 M.L.J.
43) 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. In this context, reference may be made
E to the decision of this.Court in ML. Abdul Jabhar Sahib v. H. V. Venkata Sastri
& Sons and Ors., [1969) 3 SCR. 513 wherein this Court upon reference to
Section 3 of the Transfer of Property Act has the following to state:

"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
F a fact. Briefly put, the essential conditions of a valid attestation under
s.3 are: (I) two or more witnesses have seen the executant sign the
instrument or have re.ceived from him a personal acknowledgement
of his signature; (2) with a view to attest or to bear witness to this 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
G attestandi, that is, 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 or an identifier
or a registering officer, he is not an attesting witness."

H For proper appreciation of the observations of this Court in Venkata
N. KAMA LAM (DEAD)AND ANR. v. A YY A SAMY AND ANR. [BANERJEE, J.] 277

Sastri's case (supra), Section 3 of the Transfer of Property Act, in particular, A
the meaning attributed to the word "attested" ought to be noticed and the
· same reads as below:

"attested", in relation to an instrument, means .and shall be deemed
always to have meant attested by two or more witnesses each ·of
whom has seen the executant sign or affix his mark to the instrument, B
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 C
than one of such witnesses shall have been present at the same time,
and no particular form of attestation shall be necessary;"

Turning on to the former expression 'onus probandi', it is now a fairly
well-settled principle that the same lies in every case upon the party
propounding the will and may satisfy the court's conscious that the instrument D
as propounded is the last will of a free and capable testator, meaning thereby
obviously, that the tes.tator at the tinie when he subscribed his signature on
to the will had a sound and disposing state of mind and memory and ordinarily,
however, the onus is discharged as regards the due execution of the will if
the propounder leads evidence to show that the will bears the signature and
mark of the testator and that the will is duly attested. This attestation however, E
shall have to be in accordance with Section 68 of the Evidence Act which
requires that if a document is required by law to be attested, it shall not be
used as evidence until at least one attesting witness has been called for the

- purpose of proving its execution and th.e same is so however, in the event of
there being an attesting v, :tness alive and capable of giving the evidence. The
law is also e.qually well-settled that in the event of there being circumstances
surrounding the execution of the will, shrouded in suspicion, it is the duty
F

paramount on the part of the propounder to remove that suspicion by leading
satisfactory evidence.

In this context, reference may be made to a decision of this Court in G
Seth Beni Chand (since dead) by LRs v. Sm/. Kam/a Kunwar and Ors.,
[ 19761 4 sec 554.

As regards the true legal position in the matter of proof of wills, we
rather feel it tempted to incorporate ihe succinct expression of law, in extenso,
even though rather longish in nature, by Gajendragadkar, J in the case of H
278 SUPREME COURT REPORTS [2001] SUPP. l S.C.R.

A H. Venkatachala Iyengar v. 8.N. Thimmajamma and Ors., (1959] Supp. I
SCR 426. The learned Judge had the following to state:

"It is well-known that the proof of wills presents a recurring topic for
decision in courts and there are a large number of judicial
pronouncements on the subject. The party propounding a will or
B other-wise making a claim under a will is no doubt seeking to prove
a document and, in deciding how it is to be proved, we must inevitably
refer to the statutory provisions which govern the proof of documents.
Sections 67 and 68 of the Evidence Act are relevant for this purpose.
Under s. 67, if a document is alleged to be signed by any person, the
signature of the said person must be proved to be in his handwriting,
c and for proving such a handwriting under ss. 45 and 47 of the Act
the opinions of experts and of persons acquainted with the handwriting
of the person concerned are made relevant. Section 68 deals with the
proofofthe execution of the document required by law to be attested;
and it provides that such a document shall not be used as evidence
D until one attesting witness at least has been called for the purpose of
proving its execution. These provisions prescribe the requirements
and the nature of proof which must be satisfied by the party who
relies on a document in a court of law. Similarly, ss. 59 and 63 of the
Indian Succession Act are also relevant. section 59 provides that
every person of sound mind, not being a minor, may dispose of his
property by will and the three illustrations to this section indicate
what is meant by the expression "a person of sound mind" in the
context. Section 63 requires that the testator shall sign or affix his
mark to the will or it shall be signed by some other person in his
presence and by his direction and that the signature or mark shall be
F so made that it shall appear that it was intended thereby to give effect
to the writing as a will. This section also requires that the will shall
be attested by two or more witnesses as prescribed. Thus the question
as to whether the will set up by the propounder is proved to be the
last will of the testator has to be decided in the light of these provisions.
Has the testator signed the will? Did he understand the nature and
G effect of the dispositions in the will? Did he put his signature to the
will knowing what it contained? Stated broadly it is the decision of ·
these questions which determines the nature of the finding on the
question of the proof of wills. It would prima facie be true to say that
the will has to be proved like any other document except as to the
H special requirements of attestation prescribed by s.63 of the Indian
N. KAMA LAM (DEAD)AND ANR. v. AYYASAMY AND ANR. [BANERJEE,!.] 279

Succession Act. As in the case of proof of other documents so in the A
case of pr.oof of wills it would be idle to expect proof with
mathematical certainty. The test to be applied would be the usual test
of the satisfaction of the prudent mind in such matters.

Having discussed the basic law on the subje~t as above and before
however adverting to the .contextual facts we also deem it fit to record the B
statutory provision as engrafted in the Indian Succession Act as regards the
execution of the wills. Section 63 of the Act of 1925 has three several
requirements as regards the execution of will viz.

(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 C
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.
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
personal acknowledgement of his signature or mark, or of the
signature of such other person; and each of tl:\e witnesses shall E
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."

Turning attention on to the contextual facts, it appears that the learned
Subordinate Judge of Coimbatore dealt with two several suits being Nos. 364 F
of I 98 I and 603 of I 982: whereas suit No. 364 was filed by Ganesan and
Kama lam for partition of the suit property into two equal share by metes and
bounds with demarcation of proper boundary and after so partitioned, one
half share of the suit property should be allotted to the plaintiffs and the
properties kept on the eastern side of the suit property should not be removed G
from that place or in the suit property the user right of the plaintiffs may not
be obstructed by the respondents and for which the joint pla.intiffs have
prayed for an order of 'permanent stay' against the respondents Iyyasamy
and Shanmugam together with a further prayer of restraining them from any
way interfering with the plaintiffs right of possession of their share. The
plaint in Suit No. 364 records that an half portion of the eastern side has been H
280 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A purchased by the plaintiff from two persons viz., Amasaveni and Attiammal
being two sisters who inherited property by virtue of a will executed by their
father one Masaney Gowder in their favour on 29.1.1969. The plaint further
proceeds that after the purchase of the property, the plaintiff obtained
possession of the property. The respondents, ·defendants in the Suit, however,
B disputed the right of disposition on the basis of the will since the suit property
was not and cannot by any stretch _be termed to be the personal property of
the aforesaid Masaney Gowder, as such execution of the will in favour of the
plaintiffs in the suit would not arise. It has been contended that the suit
property was purchased from the funds of the joint family in the name of
Byrammal during 1922 and the suit property has always been treated as joint
C family property and as such Masaney Gowder has had no right to execute a
will over the half portion of the suit property on the eastern side neither he
was eligible to sell the same. The defendant contended that the suit properties
have never been under the possession and enjoyment of Amsaveni and
Attiammal. As a matter of fact, .it has been the defendant's specific.case that
on 6.3.1981, the plaintiffs have trespassed into the suit property and have
D stored their properties on the pathway in the absence of the respondents.
There was, as a matter of fact, an assertion of a forceful trespass and occupation
of the plaintiffs being wrongful. The sale deed though executed and registered
in favour of the plaintiffs, are all false and fictitious documents, since the
vendor has no right to sell the property to the plaintiffs.
E Diverse issues were raised in the suit No.364 of 1981 wherein presently
we are concerned with one single issue viz., whether 'WILL' dated 29.1.1969
is a true one and whether it is valid and has a binding effect?

Incidentally, subsequent to the initiation of the suit as above in 1981
F Ayyasami also filed another original suit being O.S. No. 603 of 1982 having
a prayer inter alia for a relief of permanent injunction restraining the
respondents Ganesan and Kamalam in any way interfering with the peaceful
enjoyment of the suit property by the plaintiff, obviously, the same stands as
a counter blast against the suit of Ganesan and Kamalam.

G Significantly, however, the decree as passed by the Subordinate Judge
answers the suit property as the self-earned property of Masaney Gowder and
as such the contention of the defendants being the respondents herein, as
regards the joint family property stands negatived. The other principal issue
as regards the will has, however, been answered in the negative and the
learned Subordinate Judge records a finding that it has not been proved as
H per law with sufficient evidence that Masaney Gowder has executed the will.
N. KAMALAM (DEAD) AND ANR. v. AYYASAMY AND ANR. [BANERJEE, J.] 28 J
As a matter of fact, the learned Subordinate Judge observed that the documents A
produced depict that the will cannot be termed to be a "true one" and the
same "will not bind" the respondents.

The factual score further depicts that subsequently, an application was
moved before the High Court to allow additional evidence to be produced by
examining one Mr. Govindaraju being one of the attestor either in the High B
Court itself or to direct the Trial Court to take his evidence and send it back
to the Court where the Appeal No. 330 of 1983 preferred against the decree
and judgment dated I 0.3.1983 in O.S. ·No. 364 of 1981 on the file of the
Court of the 1st Additional Subordinate Judge, Coimbatore was pending. The
learned Single Judge in the High Court in appeal in his order dated 29.3.1994
while however allowing the application for additional evidence recorded the
c
contents of the affidavit filed in support of the application for additional
evidence, which reads as below:

"Unfortunately when I approached the two attestors of the will to
give evidence in respect of their attestation, both of them declined to D
figure as witnesses since the first respondent is very close associate
of theirs. Hence I could not prove the will as required by law."

It has also been recorded by the learned Single Judge that after filing
the appeal, the Appellants contended chat when they approached the attestors
and represented that the appellant had lost the case only on account of their E
refusal to give evidence in respect of their attestation and requested them to
reconsider and ·after four months, both of them agreed to figure as witnesses
and speak about their attestation and as a token of their assurance, they have
come to swear the affidavit to the effect that they had attested the wi II. The
learned Single Judge further recorded, that one of the attesting witnesses by
name Govindarajulu is also very old and not keeping good health and the F
other witness Subbiah Gounder died in January 1993 and the appellant could
not examine them only on account of the reasons as noticed above.

On the factual score, however, the counter affidavit on record stands
rather significant, which records as below:
G
" ...... when the petitioners were informed of the necessity to examine
the attestors and several adjournments were obtained to take steps
therefore and the petitioners preferred not to examine them. It is
therefore clear that the present averment of the petitioners are all
false and contrary to those in the said complaint filed within the ten
months after the date of this affidavit. The petitioner failed to get the H
282 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A attestors and did not even summon them in the Lower Court. Even if
they had failed to appear on summons, coersive steps could have
been taken as mentioned in the judgment of the Lower Court. On the
contrary, the petitioners were content with explaining the non-
examination of the attestors. Therefore, there is no justification to
grant the petitioner the relief prayed for by them now. The insufficiency
B of evidence is no ground for allowing additional evidence in appeal
and that the appellant should not be permitted to remove lacuna or
fill up gaps in evidence to better his case. The appeal was filed in
1983 and 10 years after that only C.M.P. No.14253/93 is filed.
Apparently the petitioner have influenced the witness to speak for
c them. There is no justification to grant either of the reliefs after the
long lapse of time."

The learned Single Judge, however, found some justification for
allowing the application and thus permitted the party to let in oral evidence
and in that perspective directed the learned Subordinate Judge, Coimbatore
D to examine the attestor and to submit his evidence before this Court before
the end of April, 1994.

It appears that against the order of the learned Single Judge dated
29.3.1994, the appeal preferred, was allowed by the Division Bench and the
order was set aside with further direction that C.M.P. No. 14253/93 be heard
E alongwith the main appeal No. 330 of 1983. The Bench of High Court directed
that the appeal be posted for hearing on 20.7.94 at the. top of the list.
Subsequently, both the appeal and the application for additional evidence
were taken up for hearing in July, 1994 wherein though the judgment was
reserved for the main appeal, but the application for additional evidence was
F dismissed and the judgment in the main appeal was pronounced on 5.9.94
wherein the Appellate Bench negatived the contention of the plaintiffs, as
regards execution of the will and hence the Special Leave Petition and the
subsequent grant of leave before this Court.

In the appeal on the basis of the evidence above therefor, two issues
G ought to be considered viz., the availability of additional evidence and on the
second count as to the validity of the will.

Admittedly, the two attesting witnesses to the will being Exhibit A-I
have not been examined in proof of due execution thereof. The learned Trial
Judge in a very detail and exhaustive judgment held that while the sale deed
H in their favour from Kamalam has been obtained but the plaintiffs have
N. KAMA LAM (DEAD) AND ANR. v. AYYASAMY ANDANR. [BANERJEE, J] 283
miserably failed to prove due execution of the will and consequently the sale A
deed, though may be a fact but cannot be termed to be otherwise as a legal
and valid document since the vendor has no right, title and interest therein
to execute the sale deed and as such the suit for partition thus failed.

Turning attention on to the issue of additional evidence, be it noted
that Order. 41 Rule 27 prescribes specific situation where production of B
additional evidence may otherwise be had. For convenience sake, Order 41
Rule 27 reads as below:

"27. [S.598). ( l) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or documentary, in the
Appellate Court, But if- C
(a) the Court from whose decree the appeal is preferred has refused
to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that
notwithstanding the exercise of due diligence such evidence was D
not within the knowledge or could not, after the exercise of due
diligence, be produced by him at the time when the decree
appealed against was passed, or

(b) the Appellate Court requires any document to be produced or
any witness to be examined to enable it to pronounce judgment, E
or for any other substantial cause,

the Appellate Court may allow such evidence or document to be
produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an
Appellate Court, the Court shall record the reason for its admission." F
facidentally, the provisions of Order 41 Rule 27 has not been engrafted
in the Code so as to patch up the weak points in the case and to fill up the
omission in the Court of Appeal - It does not authorise any lacuna or gaps
in evidence to be filled up. The authority and jurisdiction as conferred on to G
the Appellate Court to let in fresh evidence is restricted to the purpose of
pronouncement of judgment in a particular way. This Court in The Municipal
Corporation of Greater Bombay v. Lala Pancham and Ors., AIR (l 965) SC
I 008) has been candid enough to record that the requirement of the high
Court must .be limited to those cases where it found it necessary to obtain
such evidence for enabling it to pronounce judgment. In paragraph 9 of the H
284 SUPREME COURT REPORTS [2001) SUPP. l S.C.R.

A judgmenl, this Court observed:
" ...... This provision does not entitle the High Court to let in fresh
evidence at the appellate stage where even without such evidence it
can pronounce judgment in a case. It does not entitle the appellate
Court to let in fresh evidence only for the purpose of pronouncing
B judgment in a particular way. In other words, it is only for removing
a lacuna in the evidence that the appellate court is empowered to
admit additional evidence. The High Court does not say that there is
any such lacuna in this case. On the other hand what it says is that
certain documentary evidence on record supports "in a large measure"
the plaintiffs' contention about fraud and ma/a fides. We shall deal
c with these documents presently but before that we must point out that
the power under cl. (b) of sub-r.(I) of r.27 cannot be exercised for
adding to the evidence already on record except upon one of the
ground specified in the provision".

further in Smt. Pramod Kumari Bhatia v. Om Parkash Bhatia and Others,
D AIR (1980) SC 446 this Court also in more or less in an identical situation
laid down that since an application to the High Court has been made very
many years after the filing of the suit and also quite some years after the
appeal had been filed before the High Court, question of interfering with the
discretion exercised by the High Court in refusing to receive an additional
E evidence at that stage would not arise. The time lag in the matter under
consideration is also enormous and the additional evidence sought to be
produced was as a matter of fact after a period of 10 years after the filing of
the appeal. Presently, the suit was instituted in the year 1981 and the decree
therein was passed in 1983. The first appeal was filed before the High Court
in April, 1983 but the application for permission to adduce additional evidence
F came to be made only in August, 1993. Needless to record that the courts
shall have to be cautious and must always act with great circumspection in
dealing with the claims for letting in additional evidence particularly, in the
form of oral evidence at the appellate stage and that too, after a long lapse
of time: In our view, a plain reading of Order 41 Rule 27 would depict that
G the rejection of the claim for production of additional evidence after a period
of 10 years from the date of filing of the appeal, as noticed above, cannot be
termed to be erroneous or an illegal exercise of discretion. The three limbs
of Rule 27 do not stand attracted. The learned Trial Judge while dealing with
the matter has, as a matter of fact, very strongly commented upon the lapse
and failure on the part of the plaintiffs even to summon the attestors to the
H will and in our view contextually, the justice of the situation does not warrant
N. KAMALAM (DEAD)AND ANR. v. AYYASAMY AND ANR. (BANERJEE, J.] 285

any interference. The attempt, the High Court ascribed it, to be a stage managed A
affair in order somehow to defeat the claim of the respondents - and having
had the privilege of perusal of record we .lend our concurrence thereto and
the finding of the High Court can not be found fault with for re.iecting the
prayer of the appellant for additional evidence made in the belated application.
In that view of the matter, the first issue is answered in the negative and thus B
against the plaintiffs being the appellant herein.

Turning attention on to the second count on which very great emphasis
has been placed viz., the scribe also can discharge the function of atte5ting
witness and since the scribe has subscribed his signatures on to the will, the
lacuna if any, of not having the evidence of the attesting witnesses stands C
rectified and both learned trial Judge and High Court was in error in not
placing reliance thereon. Section 63 of the Indian Succession Act as noticed
hereinbefore read with Section 68 of the Evidence Act and Section 3 of the

- Transfer of.Property Act makes a mandatory obligation to have the document
attested and evidence of such attestation be made available before the Court
at the time of the trial. D
The factual score depicts that the will in question has been written by
one Arunachalam who was examined as PW 5. The will stands attested by ·
one D. Subbayya and the second attestor being P. Govindaraju, two signatures
said to have been subscribed by the above named two persons and the same
appear in the body of the will as attestors but no attempt has been made to E
examine either of the persons. Incidentally, no summon was even taken out
for the purpose of such an examination of the attesting witnesses. Section 68
of the Evidence Act as noticed above, requiring a do.cument to be attested
must be [)roved by calling at least one of the attesting witnesses. While it is
true that there are existing certain exceptions to wit: failure to find after F
honest and diligent search but there is no evidence whatsoever on record so
as to justify such a conclusion presently. Significantly, the English law though
seems to be at· variance with the principles of law prevalent in this country,
but a perusal of Section 9 of the Wills Act, as amended by the Administration
of Justice Act, 1982 does not depict a contra rule or law. Section 9 of the
Wills Act, 1837 (As amended) provides as below: G
"No will shall be valid unless-

(a) it is in writing, and signed by the testator, or by some other
person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect H
286 SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A to the will; and

(c) the signature is made or acknowledged by the testator in the
presence of two or more witnesses present at the same time; and

(d) each witness either-

B (i) attests and
signs the will; or

(ii)
acknowledges his signature, in the presence of the testator
(but not necessarily in the presence of any other witness),
c but no form of attestation shall be necessary."

As regards the requirement of attestation, Halsbury's Laws of England
has the following to state:

"The testator's signature must be made or acknowledged by him in
D the presence of two or more witnesses present at the same time. Each
witness must then either attest and sign the will or acknowledge his
signature, in the testator's presence. The testator's complete signature
must be made or acknowledged when both the attesting witnesses are
actually present at the same time and each witness must attest and
sign, or acknowledge, his signature after the testator's signature has
E
been so made or acknowledged. Although it is not essential for the
attesting witnesses to sign in the presence of each other, it is usual for
them to do so. Each witness should be able to say with truth that he
knew that the testator had signed the document but it is not necessary
that the witness should know that it is the testator's will. There is,
F however, n.1 sufficient acknowledgment unless the witnesses either
saw or had the opportunity of seeing the signature, even though the
testator expressly states that the paper to be attested is his will or that
his signature is inside the will." (Halsbury's Laws of England: 4th
Edn. Vol. 50 para: 312)

G It is in this context reference may be made to Williams on Will> wherein
it has been stated viz.-a-viz. position of attestation in Will as below:

"Section 9(e) does not specify where the witnesses are to sign (f),
and the signatures may therefore be placed on any part of the will,
if it is clear that they were placed there with the intention of attesting
H the signature of the testator (g). The attestation may be on the sheet
N. KAMA LAM (DEAD) AND ANR. v. AYY ASAMY AND ANR. [BANERJEE, J.] 287
next to where the testator has signed, i.e. overleaf (h), or on separate A
sheet so long as it is attached (i). Where the will is signed on more
than one sheet, it seems that the signature on the last sheet should be
duly attested but the decisions on the point are not uniform (j). It is
clear, however, that no part of the will which is shown to be written
after attestation is valid (k)."
B
Incidentally, be it noted that though no sp.ecial form of the attestation
clause is essential, there are two well-recognised forms of this clause showing
that the requirement of the statute have been complied with and one of them
should always be used to avoid any difficulty in securing a grant. .

The requirement of attestation presently in the country is statutory in C
nature, as noticed herein before, and pannot as such be done away with,
i's
under any circumstances. While it true that in a testamentary disposition,
the intent of the attestor shall have to be assessed in its proper perspective
but that does not however mean and imply non-compliance of a statutory
requirement. The intention of th·e attestor and its paramount importance cannot D
thwai:t- the statutory requirement. No doubt the scribe has subscribed his
signature but scribe in accordance with common English parlance mean and
imply the person who writes the document. Significantly, however, in Englan.d
the King's Secretary is pqpularly known as Scribaregis. Be that as it may, in
common parlance an attribute of scribe as a mere writer as noted above, does
not stretch the matter further. In the contextual facts, while the writer did, in E
fact, subscribe his signature but the same does not under-rate the statutory
requirement of attestation as more fully described herein before. True it is,
that strenuous submissions have been made in support of the appeal that
··attesting witnesses" have no other role to play but to subscribe their signatures
i.n order to prove the genuineness of the will and that in fact, when the scribe F
signs the will, the same can be read as attestation. Needless to record however
that the scribe Arunachalam was examined and it is on this score the learned
advocate contended that the evidence of an attestor thus can be said to be on
record so as to make the document namely the 'will' in the instant case thus
otherwise· in accordance with law.
G
The effect of subscribing a signature on the part of the scribe cannot
in our view be identified to be of same status as that of the attesting witnesses.
The signature of the attesting witness as noticed above on a document, required
attestation (admittedly in the case of a will the same is required), is a
requirement of the statute, thus cannot be equated with that of the scribe. The
full Bench judgment of the Madras High Court in H. Venkata Sastri and Sons H
288 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A and others v. Rahilna Bi and others, AIR (1962) Madras I 11 wherein
Ramachandra Iyer, J. speaking for the full bench in his inimitable style and
upon reliance on Lord Cambell's observation in Burdett v. Spilsbury has the
following to state pertaining to the meaning to be attributed to the word
'attestation":
B "....... The definition of the term "attested" which is almost identical
with that contained in S.63 (c) of the Indian Succession Act, has been
the result of an amendment introduced by Act 27 of I 926. Prior to
that amendment it was held by this court that the word 'attested' was
used only in the narrow sense of the attesting witness being present
at the time of execution. In Shamu Pattar v. Abdul Kadir, !LR 35
c Mad 607 PC, the Privy Council accepted the view of this court that
attestation of a mortgage deed must be made by the witnesses signing
his name after seeing the ac~ual execution of the deed and that a mere
acknowledgement of his signature by the executant to the attesting
witness would not be sufficient. The amending Act 27 of 1926
D modified the definition of the term in the Transfer of property Act so
as to make a person who merely obtains an acknowledgment of.
execution and affixed his signature to the document as a witness, an
attestor. It will be noticed that although S.'.l purports to define the
word "attested" it has not really done so. The effect of the definition
is only to give an extended meaning of the term for the purpose of
E the Act; the word 'attest' is used as a part of the definition itself. It
is, therefore, necessary first to
. ascertain the meaning of the word ~

'attest" independent of the statute and adopt it in the light of the
extended or qualified meaning given therein. The word "attest" means,
according to the Shorter Oxford Dictionary ·'to bear witness to, to
F affirm the truth or genuineness of, testify, certify." In Burde! v.
Spilsbury, (l!s42- 43) 10 Cl
and F 340, Lord Cambell observed at page 417,
"What is the meaning of an attesting witness to a deed? Why, it
is a witness who has seen tbe deed executed, and who signs it as a
G witness".

The Lord Chancellor stated,

"the party who sees the will executed is in fact a witness to it; if
he subscribes as a witness, he is then an attesting witness."

H The ordinary meaning of the word would show that an attesting witness
N. KAMA LAM (DEAD) AND ANR. v. AYY ASAMY AND ANR. [BANERJEE, J.] 289
should be present and see the document signed by the executant, as A
he could then alone vouch for the execution of the document. In
other words, the attesting witness must see the execution and sign.
Further, attestation being an act of a witness, i.e., to testify to the
genuineness of the signature of the executant, it is obvious that he
should have the necessary intention to vouch it. The ordinary meaning
of the word is thus in conformity with the definition thereof under the B
Transfer of Property Act before it was amended by Act 27 of 1926.
Before that amendment, admission of execution by the executant to
a witness who thereupon puts his signature cannot make him an
attestor properly so called, as he not being present at the execution,
cannot bear witness to it; a mere mental satisfaction that the deed was C
executed cannot mean that he bore witness to execution.
(4) After the amendment of S.3 by Act 27 of 1926, a person can be
said to have validly attested an instrument, if he has actually seen the
executant sign, and in a case where he had not personally witnessed
executioa, if he has received from the executant a personal, D
acknowledgment of his signature, mark etc. Thus of the two significant
requirements of the term "attest", namely (I) that the attestor should
witness the execution, which implies his presence, then, and (2) that
he should certify or vouch for the execution by subscribing his name
as a witness; which implies a consciousness and an intention to attest,
the Amending Act modified only the first; the result is that a person E
can be an attesting witness, even if he had not witnessed the actual
execution, by merely receiving personal acknowledgment from the
executant of having executed the document and putting his signature.
But the amendment did not affect in any way the necessity for the
latter requirement, namely, certifying execution which implies that F
the altesting witness had the.animus to attest."

It was next contended that in the event of there being an intent to attest,
that itself should be sufficient compliance of the requirement of law. While
the introduction of the concept of animus to attest cannot be doubted in any
way whatsoever and also do feel it relevant in the matter of proof of a G
document requiring attestation by relevant statutes but the same is dependant
. on the fact situation. The learned Judge as noticed above has himselfrecorded
that two significant requirements of the term 'attest' viz., that the attestor
should witness the execution thereby thus implying his presence on the
occasion and secondly that he should certify for execution by subscribing his
name as a witness .which implies consciousness and intention to attest. H
290 SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A Unfo11unately, however, the factual score presently available does not but
depict otherwise. The scribe's presence cannot be doubted but the issue is not
what it is being said to be in support of the appeal that the scribe having
subscribed his signature, question of further attestation would not arise - t~is
issue unfortunately we are not in a position to lend concurrence with. The
B will as produced, records the following at page 4 thereof: (page I 06 of the
P.Book)

"Witnesses l. Tl. of Masanae Gowder
I. (sd/- (T. slibbiya) S/o Veerai Gowder
25/298 Thomas Street Coimbatore.
C 2. (sd/-) B. Govindaraju s/o S. Balagurumurthy
Chettiar 251250 Rangai Gowder Street,
Coimbatore.
.. ..... Sid Arunachalam"
The animus to attest, thus, is not available, so far as the scribe is
D concerned: he is not a witness to the will but a mere writer of the will. The
statutory requirement as noticed above cannot thus be transposed in favour
of the writer rather goes against the propounder since both the witnesses are
named therein with detailed address and no attempt has been made to bring
them or to produce them before the court so as to satisfy the judicial
E conscience. Presence of scribe and his signature appearing on the document
does not by itself be taken to the proof of due attestation unless the situation
is so expressed in the document itself - this is again however not the situation
existing presently in the matter under consideration. Some grievance was
made before this court that sufficient opportunity was not being made available,
we are however, unable to record our concurrence therewith. No attempt
F whatsoever has been made to bring the attesting witnesses who are obviously
available.

It is on this count that the learned advocate in support of the appeal
very strongly contended that there is existing a responsibility on to the law
G courts to deal with the matter having due regard to the concept of justice.
Technicalities, it has been contended there may be many - but would that
sub-serve the ends of justice: one needs to ponder over the same. Justice
oriented approach cannot be decried in the present day society as opposed to
strict rigours of law: Law courts existence is dependant upon the present day
social approach and thus cannot and ought not to be administered on share
H technicalities. The discussion of the law as above, definitely make us ponder
N. KAMALAM (DEAD) AND ANR. v. A YY ASAMY AND ANR. [BANERJEE, J.] 291

over the legal aspects once more since the tenor of the observations contained A
therein obviously looked into being in favour of the technicality rather a
justice oriented approach and in that perspective let us now have a review of
the whole situation on the factual context. Masaney Gowder executed a will
said to have been written by one Arunachalam and attested by Subayya and
Govindaraju. The two attesting witnesses were not called to give evidence B
neither there was even any attempt to issue the process against them - why
it has not been done? The explanation has been that both the attesting witnesses
were inimical towards appellant and as such there was a refusal on their part
to come to court and prove the document - how far however the same is an
acceptable evidence! We will have to examine, but before so doing the factum
of non-availability of the attesting witnesses cannot be discarded and if so, C
what would be its consequences. The application for additional evidence as
dealt with herein before, was made after a lapse of about I 0 years after the
appeal was filed and the learned judges thought it fit to reject such a prayer
and we also do lend our concurrence thereof without taking any exception -
but then what is the effect? We have thus existing on record a document said
to be a will of one Masaney Gowder whose signatures stand accepted and D
. two attesting witnesses though named in the body of the document were not
made available but the writer of the will or the scribe came forward and
deposed as to the state of affairs on the date of signing of the will. It would
be convenient thus to note the evidence of the scribe and see for ourselves
as to whether even a justice oriented approach would be able to save the will· E
in the absence of the attesting witnesses. Arunachalam stated in his examination
in Chief as below:

"I have written Ex.Al. "THE WILL". I have written the WILL EX.Al.
for tlie sake of Masane Gowder. The said Masane gowder has been
introduced to me by the Advocate G.M. Nathan who was formerly F
have. During the execution of the WILL, Advocate G.M. Nathan was
residing at Thomas Street. At that time Masane Gowder was residing
at the same place after one house of Advocate's home. Before the
preparation of the "WILL" I had b~en to his house and discussed
with him about the details and he has stated the details. At that time
Masane Gowder Mental and Physical status were found good. After G
writing the Ex.A I. the Will, I have read out the same to him, and he
had stated that all were correct. Then in my presence Masane gowder
had affixed his thumb impression in each page. The affixing of Thumb
impression by Masane Gowder in Ex.A.I WILL had been witnessed
·\ by attestor Subbaiah, Govindaraju and myself. The signing of signature H
292 SUPREME COURT REPORTS (2001) SUPP. I S.C.R.

A for witness by us, was eyewitnessed by Masane Gowder. After the
Ex.A I. will had been prepared and signed I had handed over the
"WILL" to Masane Gowder."

In cross examination, the scribe Arunachalam stated as below:

B "I am engaged in profession of DOCUMENT WRITING from 1966
onwards. I do not know Masane Gowder before the introduction by
Advocate G.M. Nathan. I have not seen or verified any TITLE DEEDS
before writing the Ex.Al 'WILL'. The said Masane Gowder had
stated all the details for Ex.A.I before two days and I have drafted the
will and showed to him. Formerly I have worked as Advocates Clerk
c under G.M. Natha. In that regard he was familiar to me. I have
handed over the draft to Masane Gowder. After two days sent for me
to prepare the 'WILL', and accordingly I went wrote the Ex.AI the
will. Masane Gowder told me to come back after two days and
meanwhile he would go through and verify the same. I do not
D remember whether Amsaveni and Attiammal were present during the
preparation of the draft. When I first visited Masane Gowder's house
no males were there. The Ex.AI 'WILL' (Original will) has been
written at Masane Gowder's home itself. Who else were present at
that time, I do not remember. (Emphasis supplied) I have not gone to
G.M. Nathan to show the 'WILL' Masane Gowder did not tell me
E that any correction has been made. I do not know while writing this
WILL whether Masane Gowder has been under any kind of disease.
While writing the WILL MASANE GOWDER was an aged person.
If it is said that at that time he was running 93 years, I don't remember
the same. Masane Gowder was not in a poor health condition. He
F talked with me in perfect manner. In Ex.A-I 'WILL' I have subscribed
as written by: Written by means prepared by: I used written and
attested by. It means prepared witnessed by. The witnesses
accompanying with the person used to sign as witnesses. If it is said
that those who are eye witnessed the preparation of the document are
witness, regarding that I do not know. (Emphasis supplied) On reading
G the same Masane Gowder said that it was correct. In Ex. AI it was
not mentioned as aforesaid and written. I do not know the attestors
who signed in Ex.A.I 'WILL' before that. It is not correct if it is said
that at the time, Masane Gowder was in a sickly state without knowing
what he was doing.
H ...

....
N. KAMALAM (DEAD) AND ANR. v. AYYASAMY AND ANR. [BANERJEE, J.] 293
It is not correct if it is said that I was not aware of the Thumb A
Impression affixed in Ex.A.I. will. •I know that who are witnessing
the preparation of the document are witnesses. I have not went for the
registration of the EX.Al will. Usually for the purpose of
REGISTRATION THE DOCUMENT Writers are engaged. It is not
correct if it is said that I am giving false evidence on behalf oP B
plaintiffs."

On the basis of the aforesaid, strong reliance was placed on an earlier
judgment of the Calcutta High Court in the case of Jagannath Khan and Ors.
v. Bajrang Das Agarwa/a and Ors., AIR (1921} Calcutta 208 wherein a
Bench decision of the Calcutta High Court was pleased to record as below: C

"According to the plaintiffs case, there were two attesting witnesses
Hawai Bashunia and Kali Nath Sircar. As to Hawai Bashunia, there
is no dispute. He was present when the document was executed and
signed as an attesting witness. Kali Nath Sircar was the writer of the
bond. He signed the bond in two places but not in the place set apart D
for the signature of witnesses. It is found by the lower appellate
Court that he wrote his name as a writer and not as an attesting
witness but that he was present at the time of the execution of the
deed and actually saw it. Whether this amounted to attestation within
the meaping of Section 59 of the Transfer of Property Act, is a point E
on which different High Courts have held differently.

There are decisions of the Allahabad High Court and the Patna
High Court in favour of the appellant in Badri Prasadv. Abdul Karim,
(1913) 35 All.254 and Ram Bahadur Singh v. Ajodhya Singh, (1916)
20 C.W.N. 699. But this Court has held in the case of Raj Narain F
Ghose v. Abdur Rahim, (1901) 5 C.W.N.454, that a person who is
present and witnesses the execution of a deed and whose name appears
on the document, though he is therein described merely as the writer
of the deed, is a competent witness to prove the execution of the
deed. This case was followed in Dinamoyee Debi v. Ban Behari G
Kupur, (1902) 7 C.W.N. 160.

It is contended on behalf of the appellant that these cases of the
Calcutta High Court have in effect been over-.ruled by the decision of
thePrivy Council in Shamu Pauer v. Abdul Kadir Ravuthan, (1912)
35 Mad. 607. H
294 SUPREME COURT REPORTS [2001) SUPP. I S.C.R.

A But in that case the present question 'did not arise. The Privy
Council case turns on the question whether a person could attest a
document on an acknowledgment by the executant that the signature
on the document was his.

It is also contended that the Calcutta cases can be distinguished
B because they turn on the interpretation of section 68 of the Evidence
Act and not on the interpretation of Section 59 of the Transfer of
Property Act.

But the .. attesting witness" referred to in Section 68 of the
Evidence Act when the question is, as to proof of a mortgage, must
c have the same meaning as an attesting witness in Section 59 of the
Transfer of Property Act. If he be not an attesting witness in accordance
with the provisions of Section 59 of the Transfer of Property Act, he
cannot be a competent witness under Section 68 of the Evidence Act.
We can find nothing in the present case to make this case
p distinguishable from the Calcutta cases cited above and we follow
that decision.

The result is that this appeal fails and is dismissed with costs."

In P.A. Alagappa Chettyar v. Ko Kala Pai and Ors., AIR (1940)
E Rangoon 134 Dunkley, J. however, upon reference to the Calcutta High
Court judgment noticed hereinbefore observed that the correct view should
be that when a man places his signature upon a document and at the same
time describes himself as the writer thereof, the inference is that he signs as
writer and nothing else but as a matter of fact, it can be shown that he signed
not only as the writer but also as a witness of the fact that he saw the
F document executed or received a personal acknowledgment from the executant
that they had executed it. In Rangoon case, Dunkley, J. thereafter observed:

"In this case Po Tauk has given evidence, and he has definitely stated
that he wrote th is document, that after it had been written it was read
over to the executants, that as they were illiterate they held the pen
G while he put their cross marks on the document and wrote their
names opposite their respective cross marks, and that after all this
had been done he wrote his name and the description .. writer" on the
left-hand side of the document. In cross-examination he stated that he
could not give this evidence in reference to this particular document
but that he gave his evidence as part of his invariable practice, his
N. KAMALAM (DEAD) AND ANR. v. AYY ASAMY AND ANR. [BANERJEE,!.] 295
profession in life being the profession of a petition writer. He says A
that invariably, when he drew up documents which were to be executed
by illiterate persons, he adopted this very procedure. The learned
District Judge has discarded his evidence upon the ground that his
evidence was not really relevant because it was not evidence in regard
to the execution of this particular 4ocument but evidence in regard to B
his practice in the writing and executing of documents. But, to my
mind, this makes his evidence of more value in this particular case,
because it is to the effect that his invariable practice was to sign
·documents not merely as the. writer but by way of testimony of the
fact that he had seen the documents executed; and so far as this
particular case is concerned, the fact that he cannot, out of the very C
large number of documents written by him, remember this particular
document becomes of no importance in view of the evidence ofMutu
Raman who has deposed that he was present when this document was
written and executed and when Po Tauk signed it, and he has been
able to state that in this particular case Po Tauk wrote the document,
read it over to the executants, then caused them to hold the pen while D
he made their cross marks, and after all this had been done put his
signature in the left-hand margin as the writer. Therefore to my mind,
it has been established as a fact in this case that Po Tauk signed his
name upon this document not merely as the writer but also as testimony
that he had actually seen the executants execute the document. That E
being so, he was an attesting witness within the meaning of the
definition in S.3, T.P. Act."

While it is true that Arunachalam, in the facts of the matter under
consideration did write the Will and has also signed it but it is of utmost
requirement that the dc.:ument ought to be signed by the witnesses in order F
to have the statutory requirement fulfilled. Arunachalam has signed the
document as a scribe not as a witness, if there were no signatures available
as witness, probably we would have to specifically deal with such a situation
and consider that ~spect of the matter but presently in the facts situation of
the matter under consideration, we have the advantage of two attesting G
witnesses, none of whom have been examined and the factum of their non
availability also does not satisfactorily been proved. The evidence of one
person namely Arunachalam, cannot displace the requirement of the statute
when Arunachalam himself has specifically identified himself as Writer and
not as a witness though in•his evidence, he.tried to improve the situation, but
this improvement however, cannot said to be accepted: The Will thus fails to H
296 SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A have its full impact and its effect stands out to be nones!.
On the wake of the aforesaid, we do not find any reason to interfere
with the order of the High Court. The Appeal, therefore, fails and is dismissed.
No order however as to costs. The judgment pronounced as above, also cover
Civil Appeal Nos. 3165 and 3166of1997. All l.A.s stand disposed of without
B any further order thereon.

V.M. Appeals dismissed.