Tottenham and Ghose, JJ.
1. This appeal arises out of an application made by one Nagendra Nath for letters of administration in respect of the will said to have been executed by one Madhusudan Sircar on the 16th of Srabun 1279. The application was opposed by one Nitye Gopal Sircar, who contended that the said will was not duly executed by the said Madhusudan. The Court below has held that the document is genuine, and that it was executed according to the formalities prescribed by law; and, being of that opinion, has granted letters of administration to Nagendra Nath.
2. The objector has appealed to this Court. There were two main questions raised by the learned vakeel who appeared for the appellant-first, that the will was not genuine; and, second, that none of the attesting witnesses having signed the document, but having simply put their marks against their names written by somebody else, there was no sufficient compliance with the rules prescribed by Section 50 of the Succession Act, and that the will was not therefore a valid document.
3. Upon the first question we agree with the lower Court in holding that the will is genuine; and that it was executed by the late Madhusudan. The second question raised by the appellant's vakeel is one which is not free from difficulty, and we may confess that it is with some hesitation that we pronounce our decision in the matter.
4. The rules laid down in Section 50 of the Succession Act as to the execution of a will are:
1st.--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.
2nd.--The 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.
3rd.--The will shall be attested by two or more witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will in the presence and by the direction of the testator, or have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
5. Now, it will be observed that, while speaking of the action of the testator, the Legislature uses the expressions, 'shall sign or affix his mark,' 'signature or mark.' But in speaking of the witnesses, the section does not use any alternative expressions, but simply says 'the witnesses must sign.' And this distinction, which we may state to be a marked distinction, occurs prominently in the third rule. That being the case, we cannot help thinking that the Legislature advisedly drew a distinction between the action of the testator and that of the witnesses as regards the mode of their respective signatures. This may certainly lead in certain cases in this country to a great deal of inconvenience, and in some instances the due execution of the will may be impracticable; for it may happen, as it does happen now and then, that the will is executed at a very critical moment, and witnesses; who are able to sign their names, are not available. But whatever the inconvenience or difficulty may be in the proper working of the said rules, we cannot ignore the distinction which the Legislature has drawn. Mr. Justice Pontifex, in the case In the goods of Wynne 13 B.L.R. 392, observed that he was 'inclined to think that a signature by mark would be a sufficient 'signature by a witness even under the Indian Act, as it would undoubtedly 'be under the English Act.' But it will be observed that the point was not actually decided by him, nor was it necessary for him to come to any decision upon the matter in that case. We have examined the English Wills Act, and some of the decisions in England bearing upon the matter, but we are unable to come to the same opinion which Mr. Justice Pontifex expressed. Section 9 of the said Act (l Vic, c. 26) runs as follows: 'And be it further enacted 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; and such signature shall be made or acknowledged by the testator 'in the presence of two or more witnesses present at the same time, and each 'witness shall attest and subscribe the will in the presence of the testator, 'but no form of attestation shall be necessary.'
6. The cases bearing upon the said section show that in regard to the action of the testator a signature by mark is sufficient; and in the case of witnesses the subscription needs to be a subscription either of the name of the witness, or of some mark intended to represent it. But it will be observed, in the first place, that the said section of the English Wills Act does not lay down, as it is in the Indian Succession Act, the distinction between a signature and a mark; and, in the second place, the words used in the English Wills Act, with reference to witnesses, are 'shall attest and subscribe,' and not 'must sign,' as they are in the Indian Succession Act. That being the case, we are unable to follow the construction which has been put upon Section 9 of the English Wills Act in holding that the word 'sign' in Clause 3 of Section 50 of the Indian Succession Act includes a mark-signature.
7. In this view of the matter, we are of opinion that the second contention raised by the appellant against the will is correct; and we may observe that our view of the question is in accord with that expressed by the Bombay High Court in Fernandez v. Alves I.L.R. 3 Bom. 382.
8. But then we find that the will was presented by the testator for registration before the Sub-Registrar; and his signature was taken down before the said official on the back of the deed as admitting execution of it; and the writer of the deed, one Bepinbehari Bistu, who identified the testator before the Sub-Registrar, subscribed his name next to that of the testator, and that was followed by the signature of the Sub-Registrar himself. The said Bepinbehari in his evidence attests his own signature, and swears thai he saw the testator sign his name to the will both before the Sub-Registrar, and also at the time of the execution of the deed, and we think that we may accept the certificate of the Sub-Registrar and the endorsements made by him, as also the evidence of Bepinbehari, as clearly showing that the document was presented to that authority by Madhusudan as his will; and that his signature having been taken, both Bepinbehari and the Sub-Registrar signed their respective names. We have, therefore, two persons who actually signed their names to the document after the testator had admitted it to be his will and put his signature on it. And we think that these persons may be properly taken to be witnesses within the meaning of Section 50, and that what was done before the Sub-Registrar would be a sufficient compliance with the requirements of the third Clause of Section 50; and we should have been prepared to uphold the will as a valid document had it not been for this, that neither the evidence of the said Bepinbehari, nor the endorsements by the Sub-Registrar, shows that the said witnesses, viz., Bepin and the Sub-Registrar, signed the will 'in the presence of the testator.' Although, perhaps, there can be little doubt in the matter, yet we think that the evidence ought to be clear upon the point; and we deem it right to take the same course which another Divisional Bench of this Court took--In the matter of the petition of Hurro Sundari Dabia I.L.R. 6 Cal. 17--in remanding the case to the lower Court, with directions that Bepinbehari may be recalled, and that the parties be allowed to adduce fresh evidence in this matter. If the District Judge be of opinion, after taking such fresh evidence, that the said two witnesses signed their respective names in the presence of the testator, the order already passed by him will stand good, otherwise the application for letters of administration will have to be refused.
9. Costs will abide the ultimate result.