1. This appeal arises under the Indian Succession Act of 1925 and is preferred by the opponent in an application for letters of administration to the estate of one Bhujanga who made a will dated May 30, 1932, in the petitioner's favour. The opponent who is the petitioner's brother contends that the will is not valid inasmuch as the two attesting witnesses had not signed their names but had only made their thumb impressions, and, therefore, the provisions of Section 63, Clause (c), of the Indian Succession Act of 1925, were not fulfilled. According to him, it was necessary under that section that each of the attesting witnesses shall sign in the presence of the testator, which means that he must put down his name in his handwriting and not merely affix his mark or thumb impression. The learned Judge has not accepted this contention and has held that the word 'sign' includes the making of a mark, in the case of a person unable to write his name, as defined in the General Clauses Act of 1897. The definition of the word 'sign' there is as follows :-
'Sign' with its grammatical variations and cognate expressions, shall, with reference to a person who is unable to write his name, include 'mark,' with its grammatical variations and cognate expressions.
2. The learned Judge was of the opinion that this Act was enacted in 1897 and under Section 4 thereof, the definition of 'sign' applies to all Acts of the Governor General in Council and Regulations made on or after the fourteenth day of January 1887 unless there is anything repugnant in the subject or context. The Indian Succession Act of 1925 was enacted after 1887 though the previous Succession Act of 1865 was before that year and on that ground the learned Judge distinguished the case relied upon on behalf of the opponent, viz. Nitye Gopal Sircar v. Nagendra Nath Mitter Mozumdar I.L.R. (1885) Cal. 429 which laid down that under Section 50 of the old Succession Act, which is similar to Section 63 of the present Act, it was necessary that the attestors should sign their names and net merely put their marks thereon. He, therefore, held that the word 'sign' in the present Succession Act was governed by the definition of that term in the General Clauses Act with the result that the attestation of the will was valid and that the will was proved. The present appeal is preferred by the opponent against the order to issue letters of administration.
3. Two arguments have been urged on behalf of the appellant before us. The first argument is that this deed is not a will because it is stated in one of the clauses thereof that the testator had given certain land that day to the petitioner to be enjoyed from generation to generation and that as it was meant that the deed was to come into operation on that very day and not after his death, the document was not a will. There is no substance in this argument. What the testator meant was that by this document which he was executing on that day he had given that land to the petitioner, and the document read as a whole clearly shows that it was a will and was to come into operation after his death.
4. The second argument is the same as was urged in the lower Court and the learned advocate on behalf of the appellant has relied upon the decision in Nitye Gopal Sircar v. Nagendra Nath Mitter Mozumdar, quoted by the lower Court in its judgment, and also a similar decision of our High Court in D. Fernandez v. R. Alves I.L.R. (1879) Bom. 382. The gist of this argument is that there is a difference between the wording of Clauses (a) and (b) of Section 63 and Clause (c) thereof. In Clauses (a) and (b) with reference to the testator it is provided that the testator shall sign or shall affix his mark to the will, while in Clause (c) it is stated that each of the attesting witnesses shall sign the will in the presence of the testator, and the argument is that the legislature wanted to make a distinction between signing and merely making a mark. Otherwise the difference of phraseology could not be explained. It is true that both the decisions relied upon on behalf of the appellant support this contention. But both of them were before the present General Clauses Act which gives the definition of 'sign' as including the making of a mark in the case of illiterate persons while the previous General Clauses Act did not contain any definition of the word 'sign'. Under Section 4 of this Act this definition would apply to that word occurring in all the enactments of the Governor General in Council from the year 1887 unless there is anything repugnant in the subject or context. The question, therefore, is whether there is such repugnance in the subject or context as would make the definition of the word 'sign' inapplicable to that word occurring in Section 63 of the present Succession Act. There is a very recent full bench decision of the Allahabad High Court on this point in Maikoo Lal v. Santoo : AIR1936All576 , F.B. It is held in that case that a will is validly attested within the provisions of Section 63 of the Indian Succession Act. if the attesting witnesses have merely affixed their mark to the will. The Court was of opinion that Section 63 of the Indian Succession Act was drafted in a careless manner and the ambiguity arose from such careless draftsmanship, and that of the two possible interpretations, it was more in consonance with reason, common sense and convenience that the word 'sign' should include not only the signature containing the name but also a mark of the person attesting if he is illiterate, and one of the reasons given for preferring this view is that in England attestation can also be made by a person by affixing his mark. Much more so should it be in India where a large majority of persons in villages are illiterate.
5. There is another recent decision of the Madras High Court in Nagamma v. Verikatiamayya I.L.R. (1934) Mad. 220. There the same point has been discussed though not with reference to Section 63 of the Indian Succession Act but to the definition of the word 'attest' occurring in Section 3 of the present Transfer of Property Act. The provisions in both these sections are the same and therefore the reasoning in the Madras case would apply also to a case falling under Section 63 of the present Succession Act. There also the Court held that the word 'sign' used in Section 3 of the Transfer of Property Act with reference to an attesting witness must be taken to be governed by the definition of that word in Section 3, Clause (52), of the General Clauses Act of 1897, and to include a mark with reference to a person who is unable to write his name. This view has been followed in the Allahabad full bench decision.
6. After considering the arguments for and against the two different constructions to be put upon the word 'sign' it appears to us that the decisions of the Madras and Allahabad High Courts are correct. The definition in the General Clauses Act of 1897 does apply to the word 'sign' in Section 63 of the present Succession Act. It is probable that the legislature when it retained Section 50 of the old Succession Act in Section 63 of the present Succession Act had in mind the two decisions of the Bombay and the Calcutta High Courts quoted above as also the definition of 'sign' in the present General Clauses Act but still it did not make any change in the wording of the section. It seems to us that the reason why no such change was made is not that the legislature meant that these two decisions should remain good law even after the word 'sign' was denned in the General Clauses Act on the ground that that definition was repugnant to the context with reference to Section 63 but that no change was necessary because the word 'sign' was meant to be used in that section as denned in the General Clauses Act and that a clear distinction was intended between the acts of a testator and an attestor. The reason for making that distinction seems to be well founded. The legislature wanted to make it clear that a testator, even though literate, should be allowed to execute a valid will by making his mark only as he might be physically very weak to write his name. Even if he is unable to make his mark when, for example, his hands are incapacitated, it is further provided that the will may be signed by some other person in his presence and by his direction. Under its definition in the General Clauses Act, the word 'sign' does not include the making of a mark in the case of a literate person and it was therefore necessary to add the words or shall affix his mark' in the case of a testator, while in the case of an attestor this addition was not necessary as it was meant to be provided that a mark was to be made only by a person who is unable to write his name, i.e., illiterate, and that in his case, the word 'sign' as denned in the General Clauses Act would be sufficient as it would include a mark by an illiterate person.
7. On this view it is not necessary to ascribe careless draftsmanship to the legislature as has been done in the above-mentioned Allahabad decision. But even assuming that this view is not correct, we agree with that decision that the word 'sign' in Section 63 should be interpreted in the light of its definition in the General Clauses Act and that there is no repugnancy in the context. The main purpose of attestation is that the attestor should be present and should be assured of what he sees or what the executant acknowledges before him about his execution of the document and that can be recorded by an illiterate attestor making his mark or thumb impression on it. The two cases, D. Fernandez v. R. Alve and Nitye Gopal Sircar v Nagendra Nath Mitter Mozumdar, could be distinguished on the ground that there was no definition of the word 'sign' in the General Clauses Act then in force while in the present Act there is a definition which applies to the present Succession Act.
8. The order of the lower Court is confirmed and the appeal is dismissed with costs.
N.J. Wadia, J.
9. I agree.