TaxTMI 
TaxTMI 
2003 (11) TMI 650
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.... as Muni Devi was residing with him and also serving him in his old age, he was appointing her the sole heir and successor of his property. The Will, as executed on 16.5.1973, bears the signature of Mast Ram and is attested by two witnesses namely Sanya Brahman and Kewal Ram Brahman who have respectively thumb marked and signed the Will by way of attestation. 3. The Will was presented for registration on 21.5.1973. It appears that the registration of the Will was done on commission as the endorsement made by the Registrar of Deeds on the Will indicates that the Will was presented by the executed at 4.30 p.m. at his residence. Now commences the controversy. 4. Vijay Singh Negi, the Registrar of Deeds, read out and explained the contents of the Will to the executant Mast Ram who admitted the execution of the Will but made an oral statement to the Registrar which is in departure from the contents of the Will. Just below the endorsement relating to presentation of the Will, the Registrar has recorded the statement made by Mast Ram. This statement is signed by Mast Ram and attested by one witness namely Ram Dutt. Vijay Singh Negi, the Registrar of Deeds, has also put his signature....
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....ents No. 1 and 2. Obviously, the defendants defended the Will and submitted that the Will was only that part 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 16.3.1973 is concerned. 7. The suit filed by the plaintiffs has been dismissed by the trial Court. The decree of the trial Court has been upheld by the first appellate Court as also by the High Court. The plaintiffs have filed this appeal by special leave. 8. We have heard Shri E.C. Agrawala, the learned counsel for the appellants and Shri B.B. Sawhney, the learned senior counsel for the respondents No. 1 and 2. It was conceded at the Bar that the document executed by late Mast Ram and attested by two witnesses on 16.5.1973 is a Will. There is no controversy raised at any stage of the proceedings that the said document was a Will duly executed by the testator and attested by the witnesses. The controversy centers around the proof and effect of the statement made by Mast Ram before the Registrar of Deeds on 21.5.1973 and incorporated by the Registrar in his endorsement made on the will. It was also c....
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.... (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;" 12. Section 63 provides, by enacting the rules, for the manner in which 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 soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:- (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) the will shall be attested by two or more witnesses, each of whom has seen to the will or has seem some other person sign the will, in the presence and by the direction of t....
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.... 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 of Section 68 of the Evidence Act; a codicil will attract applicability of the provide, submitted the learned counsel for the appellants. In our opinion, 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 alternations to a will, such as a change of executors or deleting some specific gift. Codicils may be used for making any alteration in a will, but it is so easy to fail to see that a substantial alteration so made will affect parts of the will other than that intended to be affected, that it is a wise practical rule to execute a new will whenever any substantial alteration is intended, it may, in cases of urgency, be more practical to execute a codicil than to prepare a new Will, ..... the codicil is executed and attested in the same way as a will. (at p.161) Execution of codicil. The same rules apply as in the case of wills. (at p. 165)" 15. Mantha Ramamurti's La....
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....Singh and Anr. v. Bant Singh and Ors. Labh Singh and Ors. v. Piara Singh (deceased by L.Rs.) and Anr., Gurdev Singh and Ors. v. Smt. Shanti and Ors., and Mehnga and Ors. v. Major Singh and Anr., 1995 (2) 88 Pun. L.R. 24. The learned senior counsel for the respondents No. 1 and 2 disputed the correctness of the submission and placing reliance on a decision of this Court in Dharam Singh v. Aso and Anr., AIR1990SC1888 submitted that a Registrar of Deeds can never be an attesting witness. 19. We have carefully perused the submissions so made. In the case of Dharam Singh (supra), the two witnesses did not support the execution of the Will. The trial Court had relied upon the statement of the registering authority. The decision of the trial Court was reversed by the first appellate Court and the decision by latter was upheld by the High Court. In a short judgment this Court held that the appellate Court and High Court were right in their conclusion that the Registrar could not be a statutory attesting witness. There is no further discussion. Presumably what was sought to be contended before this Court was that the Registrar having discharged his statutory duty ought to be treated as a....
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....908 raises a presumption under Section 114 illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under Section 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 ruled enacted by Section 53 of the Succession Act. An endorsement by registering officer is not by itself a proof of the will having been duly executed and attested. 20. However, facts of the present case, are distinguishable from the facts of the Supreme Court decisions referred to by the learned senior counsel for the respondent No. 1 and 2. So far as the codicil is concerned, it can said to have been dictated by Mast Ram in the presence of Ram Dutt, the witness and Vijay Singh Negi, the Registrar of Deeds. The statement having been recorded, Mast Ram signed the same in the presence of Ram Dutt and Vijay Singh Negi. Ram Dutt and Vijay Singh having seen Mast Ram signing the document, both of them put their signatures on the document obviously with a view to atte....
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....nto Souza v. Johan Francis Souza and Ors., AIR1958Cal440 , and of the Orissa High Court in Kotni R.N. Subudhi v. V.R.L. Murthy Raju, AIR1961Ori180 . Question-3: 23. 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 one manner as provided in Section 68 of the Evidence Act. Under Section 68 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration: (1) the date, hour and place of presentation of the document for registration; (2) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign of agent of any person, the signature and addition of such representative, assign or agent; (3) the signature and addition of every person examined in reference to such document under any of the provisions of this Act, and (4) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of conside....