1. This is an appeal against an order of the Judge of Nuddea refusing to grant probate of a will. The ground on which the Judge refused to grant probato is, that the witnesses signed before the testator's signature was affixed at his request. It appears that the witnesses first signed the will, which was then taken to the Sub-Registrar; and before the Sub-Registrar, the testator Girish Chunder requested Chunder Coomar Chatterji to sign for him, and Chunder Coomar Chatterji wrote his name for him accordingly at his request.
2. It is now contended before us, on the authority of the case of Roy money Dassee I.L.R., 1 Cal., 150 and of Hurro Sundari Dabia v. Chunder Kant Bhuttacharjee I.L.R. 6 Cal. 17 that there is in this case a sufficient admission of the signature of the testator, because there is upon, the will an endorsement that the executor admitted the execution. Now this endorsement is signed 'Girish Chunder Banerji, by the pen of Chunder Coomar Chatterji.' Then come the words: 'Identified by Chunder Coomar Chatterji, Local. Fund Clerk, Ranaghat Sub-Divisional Office.' Then come the names of two witnesses, Chunder Coomar Chatterji and the Sub-Registrar. Now it is clear that the signature to the admission was made by Chunder Coomar Chatterji writing the name of Girish Chunder Banerjee at the request of the latter; and this being so, there is, besides Chunder Coomar Chatterji, only one witness, viz., the Sub-Registrar. Section 50 of the Indian Succession Act, Clause 3, is as follows;--' 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. 'Now it is quite clear from this language that when the testator himself signs the will, two witnesses are necessary, who must have seen the testator sign, and who afterwards must sign in the presence of the testator. When the testator does not himself sign, but some other person signs in his presence and by his direction, then, besides this other person who has so signed at the request of the testator, there must be two witnesses. In other words, when the testator does not himself sign, but gets some one else to sign for him, there must be three persons in addition to and besides the testator himself. Now in the present case it is quite clear, that the signature to the admission was made by Chunder Coomar Chatterji at the request of the testator, and there is only one witness, viz., the Sub-Registrar--that is, besides the testator there are only two persons, and not three. This being so, it appears to us that it was the clear intention of the Legislature that the person who signed for the testator at his request could not fee one of the two persons who witnessed the admission of the execution itself. We may remark that, in the first of the above cases, viz., that of Roymoney Dassee I.L.R. 1 Cal., 150, the admission before the Registrar was signed by the executrix Roymoney Dassee by the pen of Jadub Chunder Sen, and there were besides two witnesses, viz., Jogendro Nath Sen and C.M. Chatterji, Registrar--that is, there were three persons besides the testator. The facts of the second case in this respect do not appear from the report.
3. We think, therefore, that the decision of the learned Judge in the Court below is correct, and that this appeal must be dismissed without costs, as no one appears on the other side.