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Ammayee Vs. Yalumalai and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in(1892)ILR15Mad261
AppellantAmmayee
RespondentYalumalai and anr.
Cases Referred and Nitye Gopal Sircar v. Nagendra Nath Mitter Mozumdar I.L.R.
Excerpt:
succession act - act x of 1865, section 50, clause 3--attsetation--initials of witness. - .....between the testator and attesting witnesses and precludes the latter from merely putting marks or initials in attesting the will. in support of this contention, fernandez v. alves i.l.r. 3 bom. 382 and nitye gopal sircar v. nagendra nath mitter mozumdar i.l.r. 11 cah. 429 are quoted. in these cases it was held that it was not sufficient for the attesting witnesses to put their marks to the will we wish not to be understood as agreeing with these decisions. it seems to us open to argument that the principle of the english decisions as to what is a sufficient ' subscribing ' within the meaning of the english act applies equally as to what is a sufficient ' signing ' by an attesting witness within the meaning of the indian act. but it is not necessary to decide that question in.....
Judgment:

1. We have no doubt that the learned Judge in the Court below was right in holding that the will was rightly attested.

2. It is admitted by the learned Acting Advocate-General for appellant that, according to English Law, it is sufficient if the attesting witnesses affix either their marks or their initials. In the recent case of Margary v. Robinson L.R. 12 P.D. 8 the testator, two days before his death, being paralysed and partly speechless, expressed his wishes by signs which were interpreted to a medical man who wrote them down on a card. The testator made a cross with a pencil in the middle of the writing on the card and the same medical man and Anr. placed their initials on the back of the card. The will was held to be duly executed and attested. But it is contended that the Indian Succession Act, Section 50, which is made applicable to wills of Hindus by the Hindu Wills Act, by providing that the testator ' shall sign or shall affix his mark to the will ' and that the attesting witnesses ' must sign the will,' makes a distinction between the testator and attesting witnesses and precludes the latter from merely putting marks or initials in attesting the will. In support of this contention, Fernandez v. Alves I.L.R. 3 Bom. 382 and Nitye Gopal Sircar v. Nagendra Nath Mitter Mozumdar I.L.R. 11 Cah. 429 are quoted. In these cases it was held that it was not sufficient for the attesting witnesses to put their marks to the will We wish not to be understood as agreeing with these decisions. It seems to us open to argument that the principle of the English decisions as to what is a sufficient ' subscribing ' within the meaning of the English Act applies equally as to what is a sufficient ' signing ' by an attesting witness within the meaning of the Indian Act. But it is not necessary to decide that question in this case, for we agree with Mr. Justice Wilkinson that the Bombay and Calcutta decisions referred to do not apply to initials of an attesting witness, which stand on an entirely different footing from marks. The Act does not provide that the attesting witnesses should sign in full and we know of no authority for the proposition that initials are not a signature. On the contrary it has been held that they are equivalent to a signature to an acknowledgment under the Limitation Act. In our opinion, if the attesting witnesses affix their initials at the time of witnessing the execution of the will, it is a sufficient compliance with the terms of Section 50 of the Indian Succession Act.

3. [After a consideration of the evidence, their Lordships recorded their finding as follows:

4. Upon the whole we must hold that it is not proved that the deceased M. Chinna Cunneappa Chetty signed the will in question being fully aware of its contents and of the nature of what he was doing.]

5. Narasimhachari, Attorney for Appellant.

6. Branson & Branson, Attorneys for Respondents.


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