M.M. Kumar, J.

1. This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenging the view taken by the learned lower Appellate Court holding that in the absence of attesting witnesses the Will could be proved under Section 69 of the Evidence Act, 1872 (for brevity, the) and the statement made by the scribe Krishan Chand (PW3), who knew the testator Ram Bux has been relied upon to prove the registered Will. It has further been found that in 1987 the Will was produced before the Mutation Officer and the land was mutated in favour of the plaintiff-respondent on the basis of the Will. Accordingly, it has been held that the testator Ram Bux had executed a valid Will on 25.9.1981 and on the basis of the Will the plaintiff-respondent was entitled to succeed to the property in dispute along with the other properties of Ram Bux. The plaintiff-respondent has been held to be owner of the vacant site of land over which the shop in question has been constructed by him. The family settlement, Ex.D1, dated 6.2.1985 has not been accepted because it did not see the light of the day for 10 years as it was never produced before the Mutation Officer nor it has been used when the electricity connection was to be obtained by the defendant-appellant No. 1. When the recital in the Will has been cited, which is to the effect that Surinder Kaur, Karam Kaur and Dalwinder Kaur are three daughters of the testator and Surinder Kaur was already married by spending heavy amount on her marriage and, therefore, no provision was made for any property for her in the Will. It has further been held that the signature of Ram Bux on the family settlement, Ex.D1, did not tally with the admitted standard signatures. On the basis of the aforementioned findings of fact, the family settlement Ex.D1 has been discarded by the learned lower Appellate Court.

2. Mr. Pritam Saini, learned counsel for the defendant-appellants has argued that in the absence of proof of proper attestation of Will in accordance with Section 68 of the Evidence Act read with Section 63(c) of the Indian Succession Act, 1925, the Will cannot be considered to be proved. According to the learned Counsel, a scribe cannot be considered as an attesting witness. In support of his submission, learned Counsel has placed reliance on a Division Bench judgment of this Court in the case of Mohinder and Ors. v. Nagina and Ors. . Learned Counsel has also placed reliance on the judgment of the Supreme Court in the case of Janki Narayan Bhoir v. Narayan Namdeo Kadam 2003(1) R.C.R. 409 and argued that the Will cannot be proved simply by proving that the signature on the Will was that of the testator.

3. Mr. Arun Jain, learned Counsel for the plaintiff-respondent has argued that in cases where an attesting witness adopts a stance which is contrary to the duty imposed by law, like non-appearance in the Court, then there is ample power with the Court to proceed with its decision and if from other evidence on record and circumstances taken as a whole it could be held that the Will is validly executed and attested, the Court is capable of pronouncing in favour of the validity of the Will. In that regard, learned Counsel has placed reliance on a judgment of this Court in the case of Lila Dhar v. Smt. Badho and Anr. 1994(1) R.R.R. 221.

4. Having heard the learned Counsel, I am of the considered view that this appeal does not merit admission. It looks to be well settled that the Will can be proved, in the absence of attesting witnesses, by producing any proof that the attestation of one attesting witness at least has been in his hand writing and that the signature of testator is also in his own hand writing. The aforementioned provision has been made by Section 69 of theand is based on the doctrine of necessity. In the present case, one of the attesting witness (Mohan Singh Lambardar) had died and the presence of the other one (Harnek Singh) could not be procured, before the court, without undue delay and expense. The finding further is that Harnek Singh has left for foreign country in order to avoid making of statement in the Court and he has been won over by the opposite party. The view of the Lower Appellate Court in this regard is discernible from para 11 of its judgment. The relevant part of para 11 reads as under :-

It is evident that this Will was attested by the two witnesses namely Harnek Singh son of Ram Parkash and Mohan Singh, Lamberdar. So far as Mohan Singh, Lamberdar is concerned, he had since died on 4.7.1983 vide death certificate Ex.P3 and for this reason he could not be brought in the witness-box. However, Harnek Singh son of Ram Parkash is alive but it as stated by Shri A.L.Verma, counsel for the plaintiff as well as plaintiff himself on 29.10.1999 that Harnek Singh witness has joined hands with the Opposite Party and moreover, he has intentionally left to a foreign country. For this reason, Hamek Singh son of Ram Parkash also could not be examined by him.

5. The courts below have therefore, relied upon the statement of deed-writer Kishan Chand (PW.3), who had categorically stated that the Will was scribed by him, on 25.9.1981, at the instance of the testator Late Sh. Ram Bux Singh. The contents of Will were read over and explained to the testator who accepted the same to be correct, in his presence as well as in the presence of the attesting witnesses and then the testator had signed. Kishan Chand (PW.7) has further gone on to stated that the Will was attested by Mohan Singh and Harnek Singh in his presence and in the presence of testator Ram Bax, who was in sound disposing mind. The view of the learned Appellate Court, in this regard reads as under:-

Now the question arises whether the statement of the deed-writer who also knew Ram Bux Singh can be relied upon or not and whether he can be treated as an attesting witness or not. Firstly, a perusal of the statement of Krishan Chand, Deed-Writer who appeared as PW-3 revealed that the Will was scribed by him on 25.9.1981. He stated that it was written by him at the instance of Ram Bux Singh and after it was typed, the contents of the will were read over and explained to Ram Bux Singh who accepted the same to be correct and in his presence as well as in the presence of the witnesses, Ram Bux Singh had signed on it and then, it was attested by the witnesses Mohan Singh and Harnek Singh in the presence of Ram Bux Singh. lie further deposed that Ram Bux Singh was in sound disposing mind and he knew him. In the cross-examination, he stated that he did not know Ram Bux Singh on "Khandani basis" and also he did not know the names of his family members.

6. The lower Appellate Court has rightly placed reliance on a judgment of Andhra Pradesh High Court in the case of Pulipati Rajarao v. Gondrala Sithamahalakshmi and Ors. . In somewhat similarly circumstances the Will in that case was considered to be proved on account of the statement made by the deed-writer.

7. Even otherwise, an attesting witness cannot be permitted to hold the propounder of the Will to a ransom and the law is not helpless to come to the rescue of such a propounder of the Will. Even otherwise according to Section 69 of the Act, the Will is not required to be proved by an attesting witness. On the contrary Section 69 contemplates furnishing of proof of document where no attesting witness is found. It is in such a situation that the attestation of one attesting witness at least is required to be proved to be in his own hand writing and that the signatures of the testator has been appended on such a document. For the facility of reference. Section 69 of thereads as under :-

69. Proof where no attesting witness found If no such attesting witness can be found, or if the documents purpots to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

8. I am further of the view that the Will in the present case is a registered document which would give rise to presumption of its genuineness. The Sub Registrar Satwant Singh, who has registered the Will has also been examined by the plaintiff-respondent.

9. Moreover, the Will was produced before the Mutation Officer and the mutation in respect of the suit land was sanctioned in favour of the plaintiff-respondent Ram Sahai @ Ram Singh. It is true that the mutation itself does not create any title in favour of a party but still the entries made in the mutation or the facts mentioned in the order sanctioning the mutation are equally relevant. A perusal of order (Ex.P5) sanctioning the mutation by placing reliance on the disputed will dated 25.9.1981 clearly shows that Amar Kaur widow of Ram Bux Singh, Surinder Kaur wife of defendant-appellant No. 1 Babu Singh, Karam Kaur and Dalwinder Kaur daughters of Ram Bux Singh were all present before the Mutation Officer. They all have filed their affidavits before the Mutation Officer in which they had admitted the contents of the Will and allowed the sanctioning of the Will in favour of the plaintiff-respondent Ram Sahai. Therefore, the Will has to be accepted to be sufficiently proved on record.

10. The argument of the learned Counsel that the Will can be proved only in accordance with Section 68 of theread with Section 63(c) of Succession Act, 1925 cannot be accepted in the face of doctrine of necessity incorporated in Section 69 of the Act, especially when the Will has been proved by the plaintiff-respondent by producing other cogent evidence. The family settlement, on which reliance has been placed by the defendant-appellant has been found to be forged and has been correctly discarded.

11. For the reasons aforementioned this appeal fails as no question of law warranting its admission has been raised.

12. Accordingly, present appeal stands dismissed.