1. This is an appeal against an order of the Judge of Midnapore, granting letters of administration with the will annexed to Doyaram Jana. The will purports to be the will of one Soonder Jana, who died on the 29th of May 1878. It is dated and alleged to have boon executed on the day previous to his death.
2. The grant was opposed by the present objector, who is the appellant before us.
3. Evidence has been given of the execution of the will by six witnesses, of whom five wore attesting witnesses to, and one was the writer of the will.
4. The objector, on the other hand, produced five witnesses; but their evidence, of course, is of a negative character.
5. The Judge considered that there was ample direct evidence of the execution of the will, and that the witnesses for the applicant wore fairly trustworthy.
6. The Judge adds--'There are some discrepancies as to the order in which the signatures (that is, the signatures of the attesting witnesses with reference to the execution of the will by the testator) wore affixed, but these are not material.'
7. The discrepancies to which the Judge alludes are looked at by him in the light of their effect upon the credibility of the witnesses; and if they had to be considered by the Court below only for that purpose, we should not have been disposed to interiors with the order of the Judge. But the existence of those discrepancies raises the question, whether the requirements of the Indian Succession Act as to the attestation of the testator's signature by two attesting witnesses have been complied with.
8. The Judge below is of opinion, that it is immaterial whether the attesting witnesses sign before or after the testator, provided they sign in his presence.
9. Now, Section 50 of the Indian Succession Act does not, in so many words proscribe the order in which the signatures of the testator and attesting witnesses are to be affixed; but we think that it is to be implied from the language there used, and from the order in which the rules for execution are laid down, that the legislature intended that the two attesting witnesses should have seen the testator sign before they affixed their own signatures. The words in the English Wills Act, so far as they relate to the point we are now considering, are, in substance, the same as those used in the Indian Succession Act: and the English Courts of Probate, in dealing with those words, have held that the testator must sign before the attesting witnesses: Cooper v. Socket (3 Curt. 648). A case also has been cited to us--Fernandez v. Alves (I.L.R., 3 Bomb., 382)--where the Bombay High Court has taken the same view of the law, and our opinion of the law is in accordance with these authorities. (The learned Judge then proceeded to examine the evidence of the attesting witnesses, find continued). The witness Hurhu Adak is only a marksman. It is not necessary for us to determine, on the present occasion, whether the signature of a marksman would constitute the signature of an attesting witness within the meaning of the rules in the Indian Succession Act, because from his evidence one can draw no conclusion as to the order in which the signatures were affixed to the will. He merely says, 'Soonder Jana signed it, I attested it. I put a mark as my signature.'
10. The appeal is allowed, and the order of the lower Court reversed.