Tottenham and Ghose, JJ.
1. This is an appeal against a decree of the District Judge of Rungpore, refusing probate of a will alleged to have been executed by Rudramani Debya. The judgment of the Court below is very short; and it is not quite clear from that judgment whether the Court below disbelieved the factum of the will or refused probate merely because the requirements of the law, as stated in Section 50 of the Indian Succession Act, made applicable to Hindus by the Hindu Wills Act, had not been fulfilled in the matter of attestation.
2. The learned Counsel, who argued the appeal on behalf of the appellant-petitioner for probate, assumed in opening that the factum of the will was undisputed, and that it was left to him to argue only the point as to due attestation.
3. The learned vakil, however, who appeared for the respondents, strenuously contended that the will was not genuine, in addition to the defect in attestation. Section 50 of the Indian Succession Act requires, for the due execution of a will, that it shall be signed or marked by the testator, or, at his request, by somebody on his behalf, in the presence of two witnesses, and that the witnesses who attest it must sign the will in the presence of the testator. In the present case it appeared at the trial that only one of the attesting witnesses had signed the will in the actual presence of the testatrix. The first witness examined stated that, when the testatrix had signed the will, she desired the rest of the persons present to go downstairs, as she wished to perform her puja, and that the other witnesses signed in a room below, where the testatrix could not see them. This being the state of things shown in the District Court at the first hearing, a commission was issued to examine certain witnesses in Calcutta. One of these witnesses supplemented the case of the petitioner, so far as he said that one of the witnesses signed in the presence of the testatrix; but the District Judge disbelieved his evidence on this point, and possibly disbelieved the whole evidence in support of the will. But in the result he held that probate should not be granted, and dismissed the application.
4. At the close of the learned Counsel's address for the appellant we were prepared to call for further evidence as to the attestation, because it appeared that the will itself had been registered, and the endorsements on the back purported to show that the will having been acknowledged by the testatrix in the presence of the Registrar and other persons, the Registrar and another witness signed the endorsement showing that she had admitted the execution. And previous cases, decided in this Court, have held that such attestation by the Registrar would be sufficient. We have been referred to the case of Hurro Sundari Dabya v. Chunder Kant Bhuttacharjee I.L.R. 6 Cal. 17 and to another case, Nitye Gopal Sircar v. Naqendra Nath Mitter I.L.R. 11 Cal. 429, in which we ourselves were Judges, and in which we followed the law as laid down in the previous case. But upon hearing the respondents' pleader we found that he disputed the factum of the will itself. Therefore, before making up our mind to have further evidence, we thought it proper to hear him out. He urged many points against the will being accepted as a genuine document. He pointed out that the applicant for probate himself did not come forward to depose, nor did any other member of the family. He also pointed out discrepancies in the evidence, and he relied upon the state of the record, as it stood, as fully supporting the judgment of the lower Court. Assuming that judgment to be one against the factum of the will itself, he of course also relied upon the defect in the attestation which the learned Counsel for the appellant had been compelled to admit. But upon a full consideration of the evidence we came to the conclusion that the document was unquestionably genuine, that is, the testatrix had really and intentionally signed it herself, fully knowing what its purport was. That being so, we considered it necessary, in order to come to a proper judgment in the case, to obtain the evidence of the Registrar of Calcutta and the other witness whose name appears on the endorsement. It seemed to us that , if the Registrar was in a position to prove beyond doubt that he had actually signed this endorsement in the presence of the testatrix, his evidence would be sufficient to complete the case of the petitioner. We accordingly adjourned the hearing to this day. And to-day we have examined the Registrar and Baboo Kedarnath Singha, the other witness.
5. As regards Baboo Kedarnath Singha, we are not able to place any great reliance upon his statement. But as regards the evidence of Baboo Pertap Chunder Ghose, the Registrar of Calcutta, we think it unexceptionable, excepting so far as his memory, after the lapse of four years, has deceived him. There is a discrepancy between his evidence and that of Kedarnath Singha as to the particular place in which the registration was effected, that is to say, whether it took place upstairs or downstairs, and whether the Registrar was in the verandah outside the room in which the testatrix sat, or in the same room. Speaking for myself, what weighs with me most in the Registrar's evidence is his positive assurance that in such a case as this he never omits to make the endorsements and sign them then and there in the presence of the executant. He was asked if he had ever postponed making the endorsements until he returned to his office, then filling up the endorsements at his leisure; and he said that he never did so: and he also stated that he was especially careful in the case of a will to satisfy himself that the executant knew what the contents of the document were. He tells us that the testatrix in this case was decidedly an intelligent lady, and she repeated the substance of the contents of the will. From his evidence it would appear that he and the other witness were in the verandah outside the room, behind the door of which the lady sat. He remembers that she sat behind one fold of the door which was closed, and the other fold open, she being seated behind the fold closed; he also stated that all he saw of her was her hand. The question is therefore whether he was in her presence within the meaning of Section 50. It seems to have been held in English cases that in the presence of the testator 'would include his being in such a position that he could, if he chose, see the witnesses. We think that the testatrix in this case, if she sat behind one fold of the door, the Registrar being admittedly outside in the verandah, might, if she chose, without leaving her seat, have seen him by putting her head forward. It is obvious that it is not absolutely necessary that the testator should actually see the witnesses who attest the will, because a blind person may execute a will. It has been held in England that if a blind person is so placed as, if he had not been blind, he could have seen the witnesses, these witnesses ware in his presence within the meaning of the law. That is the case of in the goods of Piercy (1 Robert, 278). There is another case-Newton v. Clarke 2 Curt. 320 in which the testator signed his will while lying in his bed. There were two attesting witnesses, one of whom the testator could see and could be seen by him, and the other witness was so placed behind a curtain that neither could he see, no? could be seen by, the testator; it was held, however, that both witnesses were sufficiently in the presence of the testator to make their attestation valid. That we think is a very fair case to follow in the case of a purdanashin lady. It is unquestionable that had the fold of the door been removed the testatrix in this case would have been able to see the witnesses who signed and attested her will. It also appears to our mind that the testatrix could have seen them by putting her head forward.
6. That being so, we think probate of the will should be granted.
7. We accordingly set aside the decree of the lower Court and decree the appeal. But under the circumstances we do not think we ought to make the respondent pay the costs, for upon the evidence before the District Judge he was right in refusing probate.