VALLIAMMAL Vs. RAKKIA GOUNDER

JUDGEMENT

(1.) THE only question before me is whether the Will dated 24.10.1973, on which the plaintiff/appellant places reliance, is properly proved. While the trial Court granted a decree in favour of the plaintiff on the basis of the Will, the appellate Court has reversed the same. THE appellate Court has held that the plaintiff not having examined any of the attestors to the Will, the requirement of Sec.68 of the Evidence Act has not been satisfied. Consequently, the appellate Court held that the Will is hot proved and dismissed the suit.

(2.) IT is contended by learned counsel for the appellant that the Sub-Registrar, who registered the Will has been examined as P.W.4 in the case and he should be treated as an attestor for the purpose of Sec.68 of the Indian Evidence Act. I cannot agree with this contention. The Sub-Registrar has -not done anything excepting to sign the registration endorsement in the document, which he is bound to make under the provisions of the Registration Act. He ascertains whether the person who presents the document for registration had executed the same and on getting affirmative reply makes an endorsement to that effect and signs the registration endorsement in the documents. By no stretch of imagination can it be said that the Sub-Registrar should be treated as an attestor. IT is well known that there should be animus attestandi in order to treat a particular person as an attesting witness. The question has been considered at length by the Supreme Court in Abdul Jabbar v. Venkata Sastri, A.I.R. 1969 S.C. 1147. There is no necessity to refer to the said judgment in detail. The principle laid down in that case will apply to the present case and on that basis I hold that P.W.4 is not an attesting witness and the requirements of Sec.68 of the Indian Evidence Act are not satisfied by examining P.W.4.

(3.) THE next question will be whether the admission of execution by the executant before the Sub Registrar would amount to an admission within the meaning of Sec.70 of the Indian Evidence Act. It has been held by a Division Bench of this Court in Davood Rowther v. Ramanathan, I.L.R. 1938 Mad. 523:176 I.C. 309.A.I.R. 1938 Mad. 43, that for the purpose of Sec.70 of the Indian Evidence Act, admission should have been made either in the pleading or during the course of the trial of the suit in which the question arose for consideration. THE admission, even if it had been made before the Sub-Registrar at the time of registration will not fall within Sec.70 as it is not an admission made in the course of the suit. Similar view is taken by the Bombay High Court in Timmavva Dundappa v. Channava Appaya, A.I.R. 1948 Bom. 322.