Ameer Ali and Pratt, JJ.
1. This appeal arises out of an application by a lady named Saratmoni Debya for the probate of a will, dated the 15th November 1895, alleged to have been executed by her husband, Janaki Nath Mookerjee. The will was undoubtedly registered on the 18th of November 1895. Janaki Nath died on the 11th of December 1895, and it was propounded on the 17th January 1896.
2. Caveats were entered, one by a person named Nirmal Chunder Banerjee on the 24th February 1896, and the other on the 23rd January 1897, on behalf of the minor, Shibdhone Banerjee, by his father and guardian, Mani Lal Banerjee. In the caveats the factum of the will was impugned. It was stated that the alleged testator was not of a disposing mind; and it was contended that if the will was executed its execution was not proper under the law.
3. A considerable body of evidence has been adduced on behalf of the pro-pounder of the will. Nirmal, who was the contesting objector, gave no evidence; and the learned District Judge, upon the circumstances and facts deposed to by the witnesses for the lady Saratmoni Debya, held that the will was genuine; that the testator was of disposing capacity; and that there was proper execution.
4. The caveator No. 1 has appealed to this Court, and the learned Counsel on his behalf has raised the same questions which were raised by the objector in the Court below. We shall deal with the questions relating to the factum of the will and the capacity of the testator under one head, leaving the question regarding the proper execution to be dealt with separately, both upon the facts as well as upon the law.
5. The learned Judges then considered the evidence relating to the factum of the will, and continued.
6. We think that all the circumstances point conclusively to the factum of the will on that occasion: factum in the sense that the testator was perfectly conscious and able to understand what he was doing, and that his name, or the stamp of his name was attached to the will under his direction.
7. It is unnecessary to dwell further upon these two questions, because we agree with the District Judge in the opinion formed by him that, in spite of the infirmity from which Janaki suffered, and in spite of his paralysis and the difficulty he was under with regard to movement, etc., he was a person fully competent to make a will, and that he understood fully what he was doing at the time.
8. There remains now the question whether, if the will was executed on the 15th of November 1895, it was properly executed. We have already mentioned that it was registered on the 18th of November 1895. The Sub-Registrar, who has now retired from service, has given his evidence, and he has proved that he went to the residence of Janaki, whom he found perfectly conscious, and that he had a talk with him; that Janaki acknowledged the will; that at his instance he (Janaki) affixed his thumb-marks to the different pages; and that thereupon he attached his own signature to the will. Another witness, named Jugabundho Banerjee, did the same. The Sub-Registrar states that all this was done in the room where Janaki was lying and 'in one and the same assembly;' giving rise to the distinct inference of fact that the witnesses to the impression of the thumb-marks, altogether three persons, including the Sub-Registrar, attached their signatures to the document about the same time in the presence of the testator and in the same assembly. The evidence being to that effect, assuming that the contention to which we shall presently refer was well founded, and assuming even that the will was not properly executed on the 15th November 1895, inasmuch as Janaki himself did not, attach his signature or mark to it, the defect would be removed and there would be proper execution before the Sub-Registrar.
9. But over and beyond this it appears to us that the objection which has been taken by the learned Counsel for the caveator regarding the proper execution of the will on the 15th of November is not well founded. His contention is that the stamp of Janaki's name was attached, not by Janaki, but by somebody else; that consequently the act does not come within the meaning of Section 50 of the Indian Succession Act, which was made a part of the Hindu Wills Act; and that, therefore, the execution was not valid under the law. Now Section 50 runs thus: 'Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or a mariner at sea, must execute his will according to the following rules:---First, the testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence, or by his direction' .... It is unnecessary to refer to the 2nd and 3rd clauses. The 1st clause gives sufficient indication of the objection raised. It is contended that the affixing of the stamp, the fac simile of Janaki's name, does not amount to proper execution, inasmuch as the only person under the section who is authorised to make a mark is the testator himself, and nobody else; and that if any other person is directed to sign for the testator, he may not affix his name-stamp, as that is equivalent to making a mark.
10. Now, under the English Wills Act, it has been held that the affixing of the fac simile of a name, either by the testator or by somebody else, is sufficient under the law. Section 9 of I Vic, c. 26, provided as follows: 'That no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned (that is to say), it shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction.' The rest is immaterial. It will be noticed that in the English Act the words relating to the affixing of a mark do not occur; the reason for the introduction of these words in the Indian Act seems to us to be obvious.
11. In England there are not so many illiterate persons as in this country; and probably the Legislature considered it necessary that, in order to cover the case of the vast majority of people who are not sufficiently literate to sign their names, some provision should be made to enable them to make their wills by marks. In order to understand exactly the difference between signing and affixing the mark, it is necessary to explain what we think is meant by these words. We understand the word 'signing' to mean the writing of the name of a person so that it may convey a distinct idea to somebody else that the writing indicates a particular individually whose signature or sign it purports to be. A 'mark' is a mere symbol and does not convey any idea to a person who notices it, often even to the person who makes it. The Legislature, therefore, provides that so far as the testator is concerned, if he is literate, he may either sign his name, which would convey a distinct idea regarding the executant of the document, or, if illiterate, may fix his mark as an indication of his act as executant of the will. In the case of somebody else writing for him, it requires that be 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. If that view be correct, it is evident that the impression of the fac simile of the name is not the making of a mark, but really the affixing the name to the document. The use of a pen and ink does not seem to be necessary for the' purpose of putting on the signature required. In the case of Jenkyns v. Gaisford (1863) 11 W. R. (Eng.) 854; 3 Sw. & T 93 the Judges indicate that the use of pen and ink was not necessary for signing, and that argument may be well applied to this case also. A person may sign or put his name down by means of types, or, if he uses a fac simile for signing his name, he may use it for his signature.
12. Now let us see what the facts of this case 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 Janaki'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 with in the meaning of the words used in Section 50.
13. We think, therefore, for all these reasons that the order of the District Judge was right, and that this appeal ought to be dismissed with costs.