1. The question referred to this bench for decision is as follows:
Is a will validly attested within the meaning of the provisions of Section 63 Succession Act, if either of the attesting witnesses has merely affixed his mark to the will
2. The material portions of Section 63 Succession Act, are as follows:
(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 the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator...each of the witnesses shall sign the will in the presence of testator....
3. Learned Counsel for the appellants con-tended that a will was validly attested if the witnesses simply affixed their mark to the document. In support of his argument he referred to Section 3 Sub-section (52) General Clauses Act. Sub s. 52 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.
4. Learned Counsel contended that in view of the aforementioned provisions of the General Clauses Act the signature of a witness included his mark and that therefore a document was not invalid merely upon the ground that a witness had affixed his mark to the document instead of his signature. Learned Counsel for the respondents, upon the other hand, contended that in Section 63 Succession Act the legislation has drawn a clear distinction between signature and mark. In particular learned Counsel referred to the fact that by Sub-section (a), Section 63 it is open to the testator either to sign in the sense of actually writing his signature, or to affix his mark, but the person who may sign for him must affix his signatute; it is not open to him merely to affix his mark. Similarly learned Counsel contended that in Sub-section (c), Section 63 there is the same clear distinction drawn between signature and mark. In this section, he contended, it is implied that the testator may sign in the sense of writing his signature or he might affix his mark, but it is enjoined that the witnesses must sign. The expression used is 'and each of the witnesses shall sign' not that 'each of the witnesses shall sign or affix his mark.' It is clear from a consideration of the terms of Section 63 as a whole that the legislature intended that, where the testator was unable either to sign or to affix his mark the third person who signed for him had to sign by writing his signature and the name of the testator. It is not open to him merely to affix his mark.
5. It is further clear that in view of the provisions of Sub-section (52), Section 3, General Clauses Act that Section 63, Succession Act, has been drafted in a careless and slovenly manner. Two interpretations of the section are possible. It is possible to interpret the section as urged by learned Counsel for the respondents and to hold that so far as the attestation of wills is concerned the legislature intended to draw a clear distinction between the signing of the will in the sense of writing the signature on the one hand and the affixation of the mark of a person on the other; and that so far as the person signing for the testator and the witnesses are concerned the legislature intended that the signature, in the sense of writing the actual signature, to be essential. On the other hand, it is possible to interpret the section in the light of Sub-section (52), Section 3, General Clauses Act, and to construe the expression 'and each of the witnesses shall sign' with particular reference to that sub-section. The question which we have to decide is as to which interpretation should in the circumstances be adopted. In other words, what interpretation is consistent with the intention of the legislature so far as that intention is to be gathered from the language of the Act. Section 3, T.P. Act, defines the word 'attested' and in the definition the same distinction is drawn between the executant and the witnesses. The executant may sign or affix his mark, but the witnesses must; sign. The definition of 'attested' in Section 3, T.P. Act, was considered by a Bench of the Madras Court in Nagamma v. Venkatramayya 1935 Mad 178. In that case it was held that a document was validly attested even though one of the witnesses had merely affixed his mark to the document as a witness. In the course of his judgment the learned Chief Justice refers to the English law upon this point. He quotes from Halsbury's Laws of England the following passage:
To make a valid subscription a witness must either write his name or make some mark intended to represent his name. A will may be subscribed by marks even though the witnesses are capable of writing.
6. This principle is supported by the author Jarman on Wills, Vol. 1. Edn. 7, p. 103. The learned Chief Justice then proceeds:
In England, therefore, where people are far more literate than in India, the mark of a marksman is a sufficient attestation to a will. It is difficult to see any sufficient reason for the application of a stricter rule in India where the large majority of people are illiterate.
7. We find ourselves in complete agreement with the view which has been expressed in that case upon this point. Learned Counsel for the respondents referred to two earlier cases, D. Fernandez v. R. Alives (1878) 3 Bom 382 and Nitya Gopal Sircar v. Nagendra Nath Mitter (1885) 11 Cal 429. In both these cases the decision was that a will was not validly attested if the witnesses had not actually signed the document. As was observed, however, in the Madras case referred to above these cases were decided before the General Clauses Act of 1897. Prior to this Act there was no statutory definition of the word 'sign.' As we have already observed there are two possible interpretations of Section 63, Succession Act. The interpretation for which learned Counsel for the respondents contended would undoubtedly lead to most untoward results in these provinces. In the large majority of cases, for example, mortgages are attested by illiterate witnesses who merely affix their marks to the documents. The same is true of testamentary deeds. If we are to hold that the legislature intended that witnesses must sign the documents which they attest and not merely affix their marks thereon, it will follow that all these deeds will be invalid. We should be reluctant to interpret the section in such a way that such consequences would ensue. Undoubtedly the section is ambiguous. Its ambiguity arises from careless draftsmanship. Two interpretations are possible, and apart from authoritative decisions, in our view the Court should be guided by the general principle that that interpretation should prevail which is most consistent with reason, commonsense and convenience. That principle has been enunciated in Maxwell on Statutes, Edn. 7 at p. 166. In Section 1, dealing with presumption against intending what is inconvenient or unreasonable, the learned author states:
In determining either the general object of, the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles, should, in all cases of doubtful significance, be presumed to be the true one.
8. Undoubtedly the interpretation which is most in accord with convenience, reason, justice and legal principles is the interpretation for which the appellants contend. Furthermore we would observe that we can see no reason whatever why the legislature should have deliberately excluded illiterate persons as witnesses to testamentary dispositions in a country where the large majority of the people are illiterate. For the above reasons we are of opinion that a will is validly attested within the meaning of the provisions of Section 63, Succession Act, if neither of the two necessary attesting witnesses has merely affixed his mark to the will. We answer the question referred to this Bench accordingly.