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TMI Blog1998 (4) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... suits, we are concerned only with one of them which was the pivotal issue. According to the appellant Velugondaiah executed a Will on 2.7.45 bequeathing his properties in a particular manner. The genuineness of the Will was challenged by the respondent and Punnamma. The Subordinate Judge held that the Will was proved by the appellant to be true and valid. On that footing the suits were disposed of by grant of appropriate reliefs. On appeals, the District Judge, Ongole concurred with the Subordinate Judge and dismissed the same. The matter was taken in second appeals to the High Court of Andhra Pradesh. 3. At this stage, it is better to advert to the following undisputed facts. The Will purports to have been attested by five persons. Two of them had signed. The other three had not affixed their thump impressions or made any mark. They have been described as 'Nishanis'. It is also written in the Will as against their names LTI mark of ... though there is no thumb impression or mark actually. Out of the two attestors who had signed, one was dead and the other was not examined though admittedly alive. One of the three persons described as Nishanis , namely, Kondaiah son o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in the passage extracted earlier. The High Court has stopped short of giving a factual finding that DW 2 was not present at the time of the execution of the Will. Probably the High Court hesitated to do so as it was dealing with the matter in its second appellate stage. Hence the High Court was and we are now obliged to consider and decide the question of law. 6. Section 68 of the Indian Evidence Act enjoins the calling of at least one attesting witness for the purpose of proving execution of a Will. Section 63 of the Indian Succession Act which prescribes how an unprivileged Will is to be executed reads as follows: 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 intended thereby to give ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed on Stroud's Judicial Dictionary. At Pages 2431 and 2432 Vol. 5 of Fifth Edn., the word signed is defined as follows: Signed; Signature. (1) Speaking generally, a signature is the writing, or otherwise affixing, a person's name, or a mark to represent his name, by himself or by his authority (R. v. Kent Justices L.R. 8 Q.B. 305 with the intention of authenticating a document as being that of, or as binding on, the person whose name or mark is so written or affixed. In Morton v. Copeland 16 C.B. 535, Maule J., said, Signature does not, necessarily, mean writing a person's Christian and surname, but any mark which identifies it as the act of the party. but the reporter adds in a note, provided it be proved or admitted to be genuine, and be the accustomed mode of signature of the party. Without more, to sign is not the same as to subscribe. ' (2) The minute requisite of a signature will very according to the nature of the documents to which it is affixed, e.g. (a) Deeds; (b) Wills; (c) Contracts; (d) Bills of exchange and promissory notes; (e) Solicitors' bills; (f) Electioneering paper; (g) Judge's orders and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Clauses Act would apply and therefore the word 'sign' in Section 3 of the Transfer of Property Act included also a mark by the attestor. 11. A single Judge of the Calcutta High Court held in Rajani Mandal v. Digindra Mohan Biswas, AIR1932Cal440 that in Bengal there was a customary practice among illiterate persons to sign documents by touching the pen and authorising another person to sign by writing their name for them in their presence, and therefore an endorsement of payment of interest made by the scribe and also signed by him on behalf of the debtor who was illiterate and made no mark beneath the endorsement, amounted to acknowledgement of payment of interest by the debtor within the meaning of Section 20 of the Limitation Act (1908). It is not necessary in this case to consider the correctness of that judgment. 12. A Full Bench of the Allahabad High Court upheld the validity of 'attestation' of a Will when it found that the attesting witnesses had affixed their marks. The Full Bench agreed with the view expressed by the Division Bench of the Madras High Court in Nagamma v. Venkatramayya and Ors. AIR1935Mad178 referred to earlier. 13. The Bombay Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch referred to the Full Bench decision of the Allahabad High Court in Maikoo Lal and Anr. v. Santoo, Objector and Ors., AIR1936All576 and erroneously purported to follow it. The Division Bench overlooked that the Allahabad Full Bench dealt with the case of a Will under the provisions of the Indian Succession Act and had only ruled that the affixing of a mark by the 'attestor' would be sufficient for the purpose of valid attestation. The Division Bench did not also correctly understand the decisions in D. Fernandez v. R. Alves I.L.R. III Bom. 382 and Nitye Gopal Sircar v. Nagendra Nath Mitter Mozumdar. 16. A single Judge of the Patna High Court had occasion to consider a case under the Indian Succession Act in Kawaldeo Singh and Anr. v. Hari Prasad Singh and Anr. (1962) BLJR 939. The learned Judge held that it is not necessary that an attesting witness must either sign himself or put a thumb mark on the document and if a third person has signed on his behalf, the attestation is valid. The learned Judge has not referred to any prior ruling or discussed the question in any manner. He has not even adverted to the language of Section 63(c) of the Indian Succession Act. He ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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