Sundaram Chetty, J.
1. This appeal arises out of a testamentary suit filed by the plaintiff-respondent for the grant of probate of a will dated 22nd July 1930, and alleged to have been executed by the late Rangammal. Plaintiff is Rangam mal's husband's brother's daughter. Plaintiff's brother is the late Subbaroya Beddi, the father of the minor defendant. According to the case of the plaintiff, she and her elder brother Subbaroya Reddi were living with Rangammal after their parents' death, but after the marriage of Subbaroya Reddi he went over to his mother-in-law's house and the plaintiff alone continued to live with Bangammal throughout. Plaintiff has a daughter Muthiammal. Under the will in question (Ex. A), Bangammal bequeathed a debt due to her on a pro-note amounting to Rs. 1,900 together with moveables worth Bs. 25 in favour of the plaintiff to be held and enjoyed by her for her life and the remainder should be taken by her daughter Muthiammal with absolute rights. Rangammal had an attack of small-pox some days before the execution of the alleged will. She died on 26th July 1930, about four days after the execution of the will. Defendant resisted the plaintiff's claim by denying the genuineness of the will and also urging that it was not validly executed by Rangammal, even if the will be found to be genuine. The learned District Judge found both these points in favour of the plaintiff.
2. As regards the fact of execution of the will, there is, in my opinion, satisfactory proof of the truth of the will. It is common ground that the plaintiff and her daughter were living with the deceased Rangammal down to the latter's death and they were all messing together. The plaintiff has no property of her own as would appear even from the admission of D.W. 1. Her brother Subbaroya Reddi left Rangammal's house after his marriage and the plaintiff alone continued to be under the protection of Rangammal. The disposition by Rangammal of the little property that she had in favour of the plaintiff and her daughter is perfectly natural. The will was written by P.W. 2 who is both the Village Munsif and the karnam of the village of the testatrix. It is at tested by a number of witnesses of whom Subbaroya Reddi, the late father of the defendant, is said to be one. P.Ws. 3 to 5 are the other attestors. P.Ws. 3 and & appear to be men of substantial status in the village each paying a cist of Rs. 200. The evidence of the plaintiff is amply corroborated by the evidence of the aforesaid witnesses as regards the genuineness of the will. Nothing has been elicited to indicate any bias in these witnesses or any motive for them to be parties to a forged will in order to benefit the plaintiff.
3. Their evidence shows that it was Subbaroya Reddi, (the brother of the plaintiff) who, at the instance of Bangammal, brought the writer for preparing the will and also brought P.Ws. 3 to 5 to attest it. In fact, the very first attestation in the will purports to be his. If his attestation is true the genuineness of the will is placed beyond the pale of doubt, for he is the person interested in questioning the bequest made by Bangammal. The signature in the will, Ex. A, purporting to be his signature, when compared with his signatures in Exs. B and C (which are undisputed), impresses me with the belief in its genuineness. This is also the inference of the learned District Judge on a comparison of the signatures. The defendant has set up a fantastic story in para. 4 of his written statement, which however he has failed to substantiate. The story is that his father was asked to attest the document some time after the death of Rangammal and when he refused to do so some misunderstandings arose, and thereupon, not being able to resist the pressure brought to bear upon him, he fell into a well and died. In this narrative, there is studied omission to state whether his father attested the will or not. Plaintiff herself admits in her evidence that her brother died 10 days after the death of Rangammal. D.W. 1 says that the death was the result of his falling into a well, but there is absolutely nothing in the evidence of D.W. 1 to suggest why he fell into the well or how he happened to fall. There is credible testimony of respectable witnesses in support of the truth of the will. It is likely that the late Subbaroya Reddi did not think it proper to cross the wishes of the late Rangammal, when she wanted to make a provision for his own sister who was practically destitute, and that is why he took a leading part in getting the will executed and putting his attestation as the first. It is argued that the non-registration of the will is a suspicious circumstance. Rangammal was suffering from small, pox and was confined to bed. The registrar's office is said to be six miles from her residence.
4. When there was no apprehension of the will being questioned by anybody, the necessity of getting it registered would not have been felt. In the circumstances of this case, the omission to apply for the attendance of the Sub-Registrar at the house of Rangammal for registering the will does not lead to any adverse inference. On the whole, I see no reason to differ from the finding of the learned District Judge as regards the truth of the will. There is sufficient evidence to show that this will was executed by Rangammal when she was in, a sound and disposing state of mind. The next question is, whether the will was validly executed by Rangammal within the meaning of Section 63, Succession Act 39 of 1925. That section describes three modes of execution of a will. Clause (a) runs thus:
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.
5. Under Clause (c) there is the necessity for the attestation of the will by two or more witnesses in the manner stated therein. In the present case, the re quisites of Clause (c) have undoubtedly been complied with. The question is, whether Ex. A can be deemed to have been executed in one of the modes specified; in Clause (a). It is clear that Rangammal? has not herself signed the will. The evidence shows that she did not herself affix her mark to the will, for she simply touched the pen and asked the scribe to affix her mark to the will. It cannot therefore be deemed that the execution of the will, Ex. A, was in either of the first two modes. The point for consideration is whether Ex. A can be taken to have been executed in the third mode specified in Clause (a). What appears in the will, Ex. A, is in this form : (this scratch Rangammat mark). All this was written by P.W. 2 and besides him four others have attested the will. It is argued on behalf of the plaintiff, that pc what appears in Ex. A can reasonably pr be taken to be the signature of the testatrix written in the hand of P.W. 2 in her presence and under her direction. The question is whether this will come under the third mode of execution specified in Section 63, Clause (a). In this connexion, in the observations in Nirmal Chunder v. Saratmoni Debya (1898) 25 Cal. 911 (at p. 915) about of 'signing' and 'affixing' the mark are relevant:
The word 'signing' has been held to mean the writing of the name of a person so that it may convey a distinct idea to somebody else hat the writing indicates a particular individual whose signature or sign it purports to be whereas a 'mark' is a mere symbol and does not convey any idea to a person who notices it.
6. Adopting these interpretations, must hold that the scratch in the form of a line appearing in Ex. A is a mark., Along with this mark, the name of Rangammal was also written by P.W. 2 with a view to authenticate the will by conveying a distinct idea to others as to who the particular individual was that executed the will. Instead of Rangammal herself writing her name (which she was unable to do) P.W. 2 wrote her name for the express purpose of authenticating the will in her presence and with her concurrence. As observed in Nirmal Ghunder v. Saratmoni Debya (1898) 25 Cal. 911, when somebody else writes the name of the testator for him he should write the name or put it in such a manner as would lead anybody else to see at once who the person was that executed the document. The evidence of P.W. 4 is that when the will was read over to Rangammal, she agreed to its terms and touched the pen telling the karnam (that is the scribe) to put the mark for her, and that the karnam then put the mark and wrote her name. In cross-examination, this witness says explicitly in one portion, that she asked the karnam to put her mark and signature for her, though in answer to some other question be would say that she did not ask the karnam to sign her name. P.W. 3 would say that it was written in the document that someone signed for her and that was how the karnam read it out. There is no doubt that Eangammal asked the karnam to put the mark for her. It is equally beyond doubt that the karnam wrote her name, besides putting her mark, for the purpose of authenticating the will in the presence of Rangammal and with her; knowledge and concurrence. From the circumstances disclosed in the evidence, it can safely be inferred that the writing of her name by P.W. 2 while putting the mark was one done with her authorisation : vide Ramanamma v. Viranna .
7. The further question is, whether the writing of the name of the testator by some other person in his presence and by his direction for the purpose of authenticating the will is a mode of vacation coming within the purview of Clause (a), Section 63. It is contended on behalf of the appellant, that the third mode of execution referred to in Clause (a) covers only the case of some other person signing his name and not signing the name of the testator. If this is correct, Clause (a) should have stated that the other person should purport to sign Ibis name as proxy for or on behalf of the testator. If some other person should simply sign his name without such an indication the will would not show who the real executant was. Such a signature would be misleading. What is stated in Clause (a) is simply that the will shall be signed by same other person in his presence and by his direction, as distinguished from the testator himself signing the will or affixing his mark to it. In the case reported in In the matter of the petition of Hemlota Dabee (1883) 9 Cal. 226, the execution of the will was taken to be according to the third mode specified above. (Section 50 of the old Succession Act 1 of 1865 being the same as Section 63 of the new Act) In that case, the testator was blind and one of the witnesses signed the testator's name at his request by writing out the name of the testator and stating that it was by the pen of the writer. If the writing of the testator's name by some other person was thought to be not a valid mode of execution, there was no need to enter into the further question whether the will contained the attestations of two other present least or not, and the case could have been disposed of on the short ground, that the execution of the will was not in any of the modes fixed in Section 50. But the learned Judges evidently treated it to be a valid mode of execution and went on investigating the further question whether the will was also attested by two other persons besides the person who signed the testator's name.
8. That case is, to my mind) not a case of some other person signing his name for the testator. In the case reported in Nirmal Chunder v. Saratmoni Debya (1898) 25 Cal. 911, this question should be taken to have been directly decided. The testator was in the habit of using a name stamp (a facsimile) as he was unable to read or write. His servant who used to keep that name stamp would impress that stamp on any document in token of its execution by him. The same process was adopted in a will. The learned Judges held that it amounted to the affixing of the testator's signature by some other person within the meaning of Section 50 of Act 10 of 1865 and that it was not the mere affixing of the testator's mark. This decision is, in my opinion, an authority for holding that the writing of the testator's name in token of the execution of the will by him by some other person in his presence and under his direction is a valid mode of execution. My learned brother thinks that the execution of the will in that case is in the first mode. There are, in my opinion, some striking observations in the judgment indicating that the learned Judges treated it as the third mode of execution. It is stated that the impression of the facsimile of the name of the testator is really the affixing his name. If the testator himself attached the facsimile stamp to the will it would be the first mode of execution. But it was the servant who put the name stamp, and so, it is a case of some other person signing the testator's name in his presence and under his direction (the third mode). In my view, the opinion expressed in Radha krishna v. Subraya A.I.R. 1917 Mad. 900 is to the same effect. In that case, the mark of the testatrix was put by some other person and her name also was written by the side of the mark by the same person, but the person who did so put his signature also below that writing. In respect of such a document it was observed that this may amount to a signature by, some other person in her presence and by her direction with in the meaning of the section, and, if attested by two witnesses other than the signatory it would be sufficient. At p. 556 (of 40 Mad.) we find this passage:
If the signature as distinct from the, mark of the testatrix is taken to have been affixed by, Doraiswami Ayyanger in her presence add by her direction, the will fails for want of due attestation.
9. As I understand this passage, the signature therein referred to is the name of the testatrix written for her by some body else and not the signature of that other person. The wording in Clauses (a) and (b), Section 63 is not altogether free from ambiguity on this point. But to say that the third mode of execution necessarily means, and is confined only to, some other person signing his own name on behalf of the testator, would be too narrow a construction and is also against the view taken in the decision quoted above. I have no doubt that when some other person signs for the testator, by writing out the testator's name in his presence and by his direction, it is within the third mode of execution specified in Section 63, Clause (a) of the Act. In the present case, such was the mode of execution which can be reasonably inferred from the evidence and from a perusal of Ex. A itself. I therefore find, agreeing with the learned District Judge, that the will, Ex. A, was also validly executed. In the result, I would dismiss this appeal with costs.
10. On the questions of fact I am not prepared to differ from the conclusions of my learned brother, and will therefore deal very briefly with this aspect of the case. The most serious arguments against the genuineness of the will are : (1) failure to take Rangammal's thumb impression, (2) failure to register, and (3) discrepancies about the preparation of the draft. The first is said to be due to Rangammal's illness though it is clear that it was not any fear of infection from getting her to affix her thumb impression that is put forward, but physical impossibility). As regards the second, if Subbaroya's attestation is genuine, there was nobody else likely to contest the will and registration was not very necessary. As regards the third point, no doubt the fact, that P.W. 2 the combined village Munsif and karnam who wrote both the will and the draft, says that draft was prepared by him at the house of Kitcha Reddi at Maruvalam while P.Ws. 1 and 3 say that it was prepared at the house of deceased at Uzhavadu is a pretty serious discrepancy. Looking however to the respectable and disinterested character of the attestors, and to the fact that the lower Court who had the witnesses before him has accepted their evidence, I think these points-should not outweigh the positive testimony that the will is genuine.
11. The admission in the written statement about Subbaroya at least shows that the idea of forging a will with his signature as an attestor did not arise after his death. He was actually asked during his life time, according to the written statement, to attest a will, which he knew to be forged. Now certainly the only possible explanation of such conduct on the part of the forger would have been that he was of weak mind as stated in the written statement. They would never have dared to approach a man of normal mind to attest a forgery by which he was disinherited. But there is no proof whatsoever that be was of unsound mind. Had he been so, and to such a degree that would make it a feasible proposition to get his signature, it is hardly likely that he would have worried himself so much over this request as to commit suicide by throwing himself into a well and there is not the smallest proof that he committed suicide for this or any other reason. For aught that appears in evidence he fell accidentally into the well agree that his signature compared favourably with his admitted signatures. If his signature be genuine then the objections raised against the genuine execution of the will are of little importance.
12. But on the legal aspect of the case I regret that, after giving my best attention to the matter, I find myself unable to agree with the view of my learned brother that the will is validly executed. The matter has been dealt with in para. 5 of the judgment of the lower Court. Admittedly the mark was not put by Rangammal herself and it is not denied on the authority of Radhakrishna v. Subraya A.I.R. 1917 Mad. 900 that if a testator is to affix his mark he must actually do so himself. The argument before the lower Court merely turned on the point as to whether the signature of Rangammal appearing at the foot of the will was made by P.W. 2 in her presence and under her direction. In the earlier stages of the argument before us the ground taken was that this does not amount to her signature at all being merely a statement that it was her mark, and that if it amounts to her signature the evidence did not prove that she had authorised F.W. 2 to make it. But at a later stage in the argument a wider question came up whether, even assuming that this amounts to her signature and she had authorised P.W. 2 to make it, it is in compliance with Section 63, Succession Act of 1925, the argument being that a person signing for the testator must affix his own signature and indicate that he is signing for the testator. We have first to see what the actual words of the section are Section 63(a) says:
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.
13. Section 63 (b) says:
This 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.
14. Section 63(c) says:
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, etc.
15. In this case we are not much concerned with Section 63(c), because independently of P.W. 2 who affixed what is contended to be the signature and also the mark of Rangammal there were two other attestors who saw him do what he actually did. Taking Section 63(a), it is perfectly clear that the word 'it' there refers to the will. It cannot possibly refer to the signature of the testator. Therefore the later clause means 'the will shall be signed by some other person in his presence and by his direction.' Apart altogether from the fact that to write down another person's name pure and simple as a method of 'signing for another person' is quite unknown even in an ordinary document, let alone in a will, the plain meaning to my mind of
the will shall be signed by some other person in his (i.e., the testator's) presence and by his direction,
would be that this other person shall put his own signature indicating that he is signing for the testator. If the framers of the Act had meant otherwise they could easily have worded Section 63(a) thus:
The testator shall sign or shall affix his mark to the will, or his name shall be signed by some other person in his presence and by his direction.
16. Clause (b) appears to me to put the matter beyond dispute. It says that:
the signature or the of the testator or the signature of the person signing for Mm shall be so placed that it was appeal that it was intended thereby to give elect to the writing as a will.
17. Now, 'the signature or mark of the testator' in Clause 1 means his own signature made by the testator himself or his mark affixed by himself. Then follows the third alternative, distinctly saying that 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 of the will. The words seem to me to be perfectly clear. I shall now consider the cases which my learned brother holds to have taken an opposite view. Taking first the case of this Court, Radhakrishna v. Subraya A.I.R. 1917 Mad. 900, there the testatrix touched the pen and gave it to one Doraiswami Ayyangar who wrote in Tamil 'This X mark of Papathi Animal' and below 'this mark was taken by D.V. Doraiswami Ayyangar.' As noted above, it was held that the mark not having been affixed by the testatrix herself was invalid as a means of execution by mark. The execution of the will through the hand of Doraiswami Ayyan. gar was held to be invalid on the ground that in addition to the person so signing for the testator there were not two other attestors, as the Act requires, who saw him do So. In this case the probate asked for was refused on these two grounds and hence the remarks on other points are obiter and unnecessary for the decision of this case. What are after all these remarks? In the first place, I may note that the last clause of the head note which runs,
considered as a signed will, as it might be, it was equally invalid as the testator's signature was put by another and there were not two other attestors besides the one so signing,
while it gives a perfectly correct idea of the ratio decidendi it cannot be regarded as an exact resume of what their Lordships said on the matter before us and goes beyond their actual words. We must turn to the judgment itself. There' are two remarks bearing on the point. The first is : (1) In this case the testatrix touched the pen and gave it to Doraiswami Ayyangar who wrote in Tamil, 'This is the mark of Papathi Ammal.' This mark was taken by D.V. Doraiswami Ayyangar. 'This may amount to soma other person signing in her presence and under her direction.' It is by no means certain to my mind whether the learned Judges mean that it was the name Papathi Ammal or the signature D.V. Doraiswami Ayyangar which might amount to the signature of some other person signing in her pre. senoe and under her direction within the meaning of the section. Certainly, even on the view I take of the section, there was a complete compliance with the section except that two more witnesses who had seen D.V. Doraiswamy Ayyangar sign for the testatrix were required. Even if the construction of their Lordships' words adopted by my learned brother be correct, the opinion is a mere hypothetical conjecture on a point on which no finding was given or was necessary, the execution being invalid for another reason. The other sentence relied on by my learned brother is,
if the signature as distinct from the mark of the testatrix is taken to have been affixed by Doraiswamy Ayyangar in her presence and by her direction the will fails for want of due attestation.
18. I admit this part of the sentence lends some verbal support to his view, but the sentence continues:
as the section requires that the will should be attested by two or more witnesses each of whom must have seen the testator affix his mark, or have seen the other person (sign the will) in the presence and by direction of the testator.
19. It may equally, I consider, be argued that 'sign the will' in the end of the sentence must mean 'put his own signature.' The whole sentence is not merely hypothetical but the present point was not, as I said, under discussion at all. As, even on my view, the section would have been complied with in substance, had there been two proper attesting witnesses, this sentence, even if it had run quite affirmatively thus 'the signature, as distinct from the mark of the testatrix, affixed by Doraiswamy Ayyangar is in accordance with the terms of the section, but the execution fails for want of proper attestation' would not have touched the present point at all. In effect what the learned Judges say is this : 'Of the three modes of execution that by affixture of mark is bad in this case, and the method of signing through another person, even if it is valid as regards the mere signing, (with regard to which we do not express a positive opinion) fails for want of proper attestation.' This case is not therefore I consider any authority for holding that the meaning of Sections 63(a) and (b) is not what, it seems to me, the plain English indicates.
20. Next I will take Hemlota Debt, In the matter of (1883) 9 Cal. 226. This turned precisely on the same question as arose in Radhakrishna v. Subraya A.I.R. 1917 Mad. 900. In this case it was held that where the testator does not himself sign the will, but some other person signs it in his presence and by his direction, then besides this other person, there must be two witnesses who must sign the will in the presence of the testator. In that case the will was written by the Magistrate's clerk and was signed by seven witnesses. The testator and the witnesses then went to the Sub-Registrar's office; the Sub-Registrar then requested the testator to sign, but he said 'I am blind.' Then one of the witnesses, Chunder Coomar Chatterji, signed the testator's name at his request in the following manner 'Cirish Chunder Banerji, by the pen of Chunder Coomar Chatterji of Amelia' and then wrote under this 'identified by Chunder Coomar Chatterji, local fund clerk, Ranaghat Sub-divisional Office, Chunder Coomar Chatterji, local fund clerk, Ranaghat.' Then followed the signature of the Sub-Registrar. The District Judge refused probate, on the ground that the witnesses had signed before the testator's signature was affixed at his request, and that there must have been two or more witnesses who saw Chunder Coomar Chatterji sign for the testator. This view was upheld. So in this case the question whether the signature required was the name of Girish Chunder Bannerji or the signature of Chunder Coomar Chatterji for the testator was not discussed nor was the point raised, but even if it had been raised the section would have been, on the interpretation which I put upon it, satisfied because the name of the testator is not only followed by the words 'by the pen of Chunder Coomar Chatterji, local fund clerk, Banaghat Sub-divisional Office,' but the latter then proceeds to put his signature 'Chunder Coomar Chatterji, local fund clerk, Ranagbat.' The section might well I consider have been held to have been satisfied in substance even if the first flentence only bad been there 'Girish Chunder Bannerji by the pen of Chunder Coomar Chatterji of Amelia.' The actual signature of Chunder Coomar Chatterji made the compliance with the section complete had the necessary attestation been there.
21. The last case is Nirmal Chunder v. Sarat Moni Debya (1898) 25 Cal. 911. There the testator for a number of years, was, as he was unable to write, in the habit of using a name stamp, which used to be attached by a servant to any document or paper he wanted to sign. He executed a will, and under his direction a servant affixed the impression of his same stamp on the said document. It was held that the execution of the will in this case was proper and came strictly within the meaning of the words used in Section 50, Succession Act, (now Section 63). There the learned Judges held that the affixing of the facsimile of the name is act making the mark, but really the affixing the name to the document. My learned brother considers that the method of execution in that case was held to be signing it through another person, i.e., the third mode; but with respect I differ and consider that it was held to be actual signing by the testator himself. The learned Judges quote Jenkyns v. Gaisford (1863) 11 W.R. 854, where the Judges indicate that the use of pen and ink is not necessary for signing and they say that 'a person may sign or put his name down by means of types, or if he 4t$e$ facsimile for signing his name, he may use it for his signature.' (The italics are mine). There is, no doubt, earlier on the page, a sentence which lends some support to the view that the writing of the testator's name by another person is what the section requires where the learned Judges say:
In the case of somebody else writing for him, it requires that he should write the name or put it in such a manner as would lead anybody else to see at once who the person was who executed the document.
22. But, as I read the judgment as a whole, the learned Judges considered the execution in that case to have been by the first mode, namely the testator Signing the will himself. Otherwise the remark that pen and ink are not necessary and that the person (person here clearly being testator) may sign or put his name by types or facsimiles seems irrelevant. I would also rely on the final words in the judgment
How let us see What the facts...are. It appears that for a number of years Janaki had been in the habit of using a name stamp as he was unable to read or write. That name stamp used to be kept by a servant, and under Janki's direction used to be attached to any document or papers he wanted to sign. That being so it appears to us that the learned District Judge was perfectly right in holding that the execution of the will in this case was proper and came strictly within the meaning of the words used in Section 50.
23. If my view of that case is correct, the matter before us did not arise, and the sentence which supports the view of the law taken by my learned brother is obiter. Even otherwise the words of the section appear to me so plain that I should feel bound by their natural meaning. Nor does the signature of this other person appear to me a mere technical requirement. If this other person puts his signature as having signed for the testator at the latter's request in his presence, and by his direction, his signature not only indicates who this other person is, but fixes him with the responsibility of the assertion that the will has really been executed by the testator through his hand. If the mere writing of the testator's name, without anything more, is sufficient, then parties may forge the signature of the testator, and subsequently, fearing that it may not pass as genuine, may allege that it is not, as it appears to be, his name signed by himself but his name was written on the document by some other person in his presence and under his direction, and this in spite of the fact that there is no indication of anything of the sort in the document. The proof would then rest only on oral evidence and it might easily be said that this third person was dead or had turned hostile.
24. It may be argued that an execution of the testator by means of affixing his mark must similarly rest on oral evidence. To that I think there is a twofold reply. Firstly 'ex necessitate rerum,' if the affixing of his mark by the testator is allowed as a means of execution, then the proof must generally be oral and choice lies between disallowing such a method of execution altogether and accepting it with its necessary infirmities in the way of proof. As a matter of fact there might; be oases where a forged mark might be proved not to be that of the testator by comparison with some uniform mark which he had always used. So that it is not quite correct to say that the truth or other, wise of execution by mark must always depend entirely on oral evidence. But where another person is allowed to sign for the testator, and the implication of the section clearly is that this other person is able to sign his own name, why should the precaution that his signature must appear be omitted? I therefore do not consider that any argument against the view I take of the section can be raised from the fact that execution by affixture of mark must in most cases depend on oral evidence.
25. If my view on this question of law is incorrect, there still remains the second question of law discussed by my learned brother whether 'this scratch Rangammal's mark,' is the same as writing Rangammal's name. The solution of this point depends on, whether the words are to be read as a whole and equivalent to putting the signature of Rangammal, or in parts and as meaning no more than a statement that this is Rangammal's mark. Here I agree with my learned brother, but I would add that the nicety of this distinction affords to my mind another indication why this method of execution (when the party does not himself affix his mark) is not likely to have been that intended by the Legislature as a compliance with the third method of signing, Radha Krishna v. Subraya A.I.R. 1917 Mad. 900 is not of much use to us on this point though it would have been of help had Doraiswamy Ayyangar not signed his own name.
26. An attempt was made to argue that, because at the foot of the document P.W. 2 has signed as the writer, this is a sufficient compliance with the section, no matter which view of the section is taken. This argument certainly cannot be accepted. There is no indication in the document that P.W. 2 signed for the testatrix nor can it even be concluded that because at the foot he describes himself as the writer of the document, and signs as such, be wrote her name or wrote anything more than the body of the document. Many documents which he executant signs himself are described at the foot as being written by the writer who then signs, but that is no indication that he wrote the executant's name also. It might as well be argued that he either signed for, or wrote the names of the attestors which appear above his signature. I would also agree with my learned brother that if the writing of Rangammal's name in this manner is sufficient execution, there is enough evidence that it was done under her direction and in her presence. On the view which I take of the first legal point I hold that the appeal should be allowed with costs.
27. [The Court (Sundaram Chetty and Pakenham Walsh, JJ.) made the following order.] As we are differing on the following question of law, viz.,
Whether the execution of the will (Ex. A) in the circumstances of this case, by Rangammal, can be deemed to be in conformity with Section 63, Succession Act, 39 of 1925;
we refer this case under Clause 36, Letters-Patent, so that His Lordship the Chief Justice may have it posted for hearing before another Judge. [In pursuance of the above order of reference, this appeal against order coming on for hearing on 9th November 1933, the Court made the following opinion. Opinion of the Court was given by]
28. The question referred to me on account of a difference of opinion between the learned Judges who heard this appeal is whether the execution of the will, Ex. A, in the circumstances of this case, by Rangammal, can be deemed to be in conformity with Section 63, Succession Act 39 of 1925. Beading the two. judgments, the question on which this difference of opinion arose lies within a narrow compass. Both the learned Judges have held that the will Ex. A, is genuine in the sense that it was a testamentary disposition in fact made by Rangammal in her lifetime when she was of sound disposing mind. It is in ths handwriting of P.W. 2, Kothandarama Pillai who is the village Munsif and karnam of the village, Ulaivetti. The execution of the will which also is in the handwriting of Kothandarama Pillai consists of the words in Tamil equivalent to the English, 'this scratch, the mark of Rangammal.' It is attested by four witnesses one of whom being dead the others have been examined as witnesses 3, 4 and 5. After the attestation there appears the customary memorandum by the writer that the will is in the handwriting of Kothandarama Pillai, village Munsif and karnam of the village of Ulaivetti. About the genuineness of all this the learned Judges were both satisfied, as was the learned District Judge who heard the case in the first Court. The point on which they differed was one which had been taken before the District Judge, viz., that the execution by Kothandarama Pillai's writing 'this scratch mark of Rangammal' although it was done in the presence and by the direction of Rangammal was not sufficient execution under Section 63, Succession Act. The District Judge overruled it relying on certain Indian decisions. Sundaram Chetty, J., also relying on the same decisions over ruled it, but Pakenham Walsh, J., upheld it.
29. The point of difference is this: where. as the former learned Judge is of opinion that when an execution of a will by a person other than the testator in his presence and by his direction takes place it is sufficient for that other to affix the signature of the testator himself; the other learned Judge thinks that this is not the effect of the section or of the authorities relied upon but that a proper execution under the section requires that the other person executing the will under the direction of the testator must sign in his own name with sufficient indication to show that he has executed it under the testator's direction. The difference of opinion is in short about the form of execution by another person executing the will under the direction of the testator. There is no difference of opinion at all on the facts because as I have said both the learned Judges agree with the District Judge that when Kothandarama Pillai executed the will he did so in the presence and by the direction of Rangammal.
30. The difference of opinion being thus narrowed down to the form of execution, I may at once share the regret of the learned advocate for the propounder of the will here that the authorities cited by him before me were not referred to at the hearing before the learned Judges because if they were, perhaps the reference would have been unnecessary. Before I come to them, I may at once say that the three Indian decisions as to the effect of which the learned Judges have differed are not of much help to decide the point. The case in Radha Krishna v. Subraya A.I.R. 1917 Mad. 900 was not a decision on the form of execution by another person because there the form was sufficient according to the view of either learned Judge. There was in that will both the name of the testator and the name of the other person written one above the other by that other person. This question therefore could not then have been decided. What was held, was that if the other person's signature to the execution be taken as part of the execution, the will failed because there were no two other attestors as required by Section 63, Succession Act. There were only the other person who executed the will and one other attestor. That was the ground of the decision and it is of no help now. The case in Hemlata Dabee, In the matter of (1883) 9 Cal. 226 was exactly the same. There also there were not two other attestors besides the other person who executed the will for the testator and on that ground the will was held invalid. The case in Nirmal Chunder v. Sarat Moni Debya (1898) 25 Cal. 911 was one where the testator, who for a number of years, was, as he was unable to write, in the habit of using a name stamp which used to be attached by a servant to a document or paper he want, ed to sign, directed that servant to affix the name stamp to his will and the question was whether that was sufficient execution. It was held that it was on the ground that affixing the name stamp was equivalent to signing. It is not clear whether the Court held that the signature was affixed by the testator himself and treated the servant as a mere mechanical aid or whether they treated the signature as having been affixed by another person in the presence and under the direction of the testator which is the alternative mode provided by Section 63(a). That decision also is therefore not a clear authority.
31. It may however be pointed out that the reliance in that case on Jenkyns v. Gaisford (1863) 11 W.R. 854, appears to be hardly justified as supporting the proposition that affixing the name stamp is equivalent to a signature. Sir Charles Cress-well said that affixing a name stamp is marking and as marking is held to be included as a form of execration in the expression 'signing' according to the English Willa Act, marking by means of a stamp is sufficient execution. To quote the language o the learned Judge:
Whether the mark is made by a pan or by some other instrument cannot make any difference; neither can it in reason make a difference that a facsimile of the whole name was impressed on the will instead of a mere mark or X. The mark made by the instrument or stamp used was intended to stand for and represent the signature of the testator.
32. It is clear therefore that the use made of this decision in Nirmal Chunder v. Sarat Moni Debya (1898) 25 Cal. 911 was not accurate. But the decisions on the English practice of executing wills by others under the direction of the testator upon the words of the English Wills Act, Section 9, which are practically identical with those of Section 63, Succession Act, leave no room for doubt that execution by another is sufficient if he signs the name of the testator. In Jarman on Wills (7th Edn., p. 96), it is stated that it is immaterial that the other person signed his own name instead of the name of the testator, meaning that signing the name of the testator is the more approved and common method. To the same effect is the statement in Tristram and Cootes' Probate Practice (17th Edn.), p. 29, where it is stated that
when a person signs for a testator by the direction, he may sign either the testator's name or his own for the purpose of giving effect to such direction.
33. The decisions fully bear this out. In In the goods of James Clerk (1889) 2 Cur 329, the signature to the will was 'signed on behalf of the testator in his presence, and by his direction, by me, C.F. Furlong, Vicar of Warfield, Berks.' The question was as the signature did not contain the name of the testator but only that of the other person, Furlong, whether the execution was good. In answer Sir Herbert Jenner said that the statute allows a will to be signed for the testator by another person, and it does not say that
the signature must be in the testator's name; here, this gentleman, at the testator's request, signed the will for him not in the testator's name but using his own name.
34. He held that the will was validly executed. Such a question could not possibly arise if it were the law that it was essential for the purpose of execution by another person that the signature of the other person must be there and the signature of the testator need not be put. This was the converse case to the present one. In In the goods of Thomas Marshall (1866) 13 L.T. 643, the will was signed by another person in the name of the testator. The question was never raised that that was not enough but the question was whether there was sufficient authority for the other person. In Smith v. Harris (1844) 1 Rob Ec. C. 262 also, the will signed by the direction of the testator with the name of the testator, Eliza, beth Beard; and it never was questioned that the execution was invalid because the signature was not of the other person signing by direction. In Clery v. Barry 21 Ir. R. 152 at p. 166, there are some observations on this subject. It appeared from the affidavit of one Maryanne Maguire that at the request of the testator, a gentleman 92 years old, she had put his signature upon his will. The question was not whether the signature by her of the testator's name would invalidate the execution but whether the execution was before or after the attesting witnesses had signed. As to the method of other persons executing a will by direction of the testator, Chief Baron Palles said:
The law permits a signature to be either in the handwriting of the testator, or in that of another person, if proved to have been affixed' by his direction. No doubt, when the handwriting of the signature is that of the alleged testator, it is more easy to arrive at the presumption (of valid execution) than where it is that of another; because proof of direction in the former case is often unnecessary; but once the Court is clearly satisfied by evidence that the signature, although not in the testator's own handwriting, was affixed by his direction. I cannot see why the same presumption should1 not apply as if he had written it himself.
35. It is clear that the signature spoken of is of the name of the testator although affixed by another person at his direction. The principle is that according to the proper construction of the words in the English statute corresponding to Section 63(a) 'it shall be signed by some other person in his presence and by his direction;' the proper form of such signature is and has always been recognized to be for the other person to sign the name of the testator and not his own. It is no doubt usual to add that the testator's signature was made by the other person in his presence and by his direction and then for the other person to sign. But this is a matter of furnishing prima facie evidence that the signature by the other parson is, as it should be in order to be valid according to the section affixed in the presence of the testator and by his direction and does not form an integral part of the signature itself. The evidence of presence and authority might be given otherwise than by such an addition to the signature. It is no doubt usual and regular to avoid disputes that the other person should add when signing the testator's name that he does so according to the section. The absence of such an addition however does not invalidate the signature of the testator's name if in fact it was made as the law requires in the presence and by the direction of the testator.
36. In In re Whiteley Partners, Ltd. (1886) 32 Ch. D. 337, some other than one of the proper signatories signed on his behalf without the addition to the memorandum showing t he authority by which he was signing. Cotton, L.J., described the signature as irregular for it ought to have been 'P. Callan by Oakely his attorney'. He said that the irregularity will not make the signature invalid if there was authority to affix it. The Queen v. Justice of Kent (1887) 8 Q.B. 305, was a case where notice of an appeal was signed in the name of the appellant by the clerk to his attorney. This case also confirms the point that according to the practice of lawyers the signature by one man at the request of another and on his behalf is usually of the latter's name without the name of the former.
37. On the above authorities it is clear that if this will was signed by Kothandarama Pillai with the name of the testatrix the execution was sufficient according to Section 63(a), Succession Act, and cannot be said to be invalid because it did not contain the signature of Kothandarama Pillai himself. On the question whether the writing at the foot of the will, 'This scratch the mark of Rangammal' admittedly written by Kothandarama Pillai amounts to his signature of the testatrix's name both the learned. Judges have agreed that it is to be sol regarded and I entirely agree. The habit of illiterate persons in the Tamil country who can only make marks but who wish to authenticate their documents by the instrumentality of others is precisely what happened in this case. The pen is touched and handed over to the person who makes the mark and adds to the memorandum that this is the mark of the executant. The meaning and object of that act is to authenticate the document as that of the person whose name is written. Such being the case there can be no doubt as the learned Judges have held that Kothandarama Pillai did sign Bangammal's name to the will. As already stated that he did so in her presence and under her direction is proved. The will was therefore validly executed and that is my answer to the point referred. [The case having again been set down for being spoken to on 10th November 1933, the Court of Krishnan Pandalai, J., made the following further observations.]
38. On the above opinion the point has been raised whether I should now pronounce judgment in the appeal or send the opinion to the Bench for decision by them. It has been brought to my notice that in some cases a Judge or Bench to whom a point under Clause 36 Letters Patent is referred, has pronounced judgment in the case in accordance with the opinion of the majority without sending the case to the Bench for that decision to be pronounced by them. Although this may be possible in a case like the present, where there is nothing else to be decided but the point referred, to enable a decision in the case to be pronouncedi yet it would not be possible for the refree Judge to decide the case where the point referred is only preliminary to the decision of points which are not referred. For in such a case obviously both under Clause 36, Letters Patent, and the analogous words to the proviso to Section 98(2), Civil P.C., as now amended, the case has to go back to the Bench for decision. The matter may seem technical in the present case but to be strictly in accordance with the procedure which I am persuaded must be the same as to both classes of cases. I think the opinion I have pronounced mast go to the Bench for the appeal to be decided. It has the advantage of informing the referring Judges of the opinion of the third Judge on the point referred. [The appeal again coming on for final hearing after the expression of opinion of the third Judge on 14th November 1933, the Court Sundaram Chetty and Pakenham Walsh, JJ., delivered the following:]