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Sirmati Sabitri ThakuraIn Vs. F.A. Sain, Executor to the Estate of Late Woogra Mohan Thakur - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in29Ind.Cas.743
AppellantSirmati Sabitri Thakurain
RespondentF.A. Sain, Executor to the Estate of Late Woogra Mohan Thakur
Cases ReferredMukta Nath Roy Chowdhuri v. Jitendra Nath Roy Chowdhuri
Excerpt:
succession, act (x of 1865), section 50 - will--valid, execution, what is. - .....on each of which the signature of the deceased appears. at the top left-hand corner of the first page the signature is 'w.m. thakur. by my own pen.' on the second page, it is signed 'w.m. thakur.' on the third page also it is signed 'w.m. thakur.' on the fourth and the lust page at the end there appears the signature 'woogra mohan thakur, dated the 10th of may 1913 in the year one thousand nine hundred and thirteen only.' against the signature or alongside the signature of the testator on the margin of the first page, four persons are said to have attested the will and on each of the other three pages there appear the signatures of two of the four persons whose, names appear on the first page as the attesting witnesses. the only question is first of all, which is the operative.....
Judgment:

Fletcher, J.

1. This is an appeal by the appellant against a judgment of the learned District Judge of Bhagalpur dated the 13th November 1914. The respondent in the present appeal presented for Probate to the learned Judge a document which, he alleged, was the last Will of one Woogra Mohan Thaknr, the alleged Will bearing date the 10th May 1913. The deceased died on the 29th January 1914 childless, leaving the present appellant him surviving who is his widow. The respondent to the present appeal is one of the executors named in the Will, the other executor having renounced Probate thereof. The alleged Will had been deposited by the deceased with the Sub-Registrar of Assurances. It is not denied that the Will which is a holograph Will is, in fact, wholly in the handwriting of the deceased and it bears many of his signatures on the various pages thereof. The, only question raised in this appeal is, whether the Will has been executed in the manner provided by Section 50 of the Indian Succession Act, which section has been incorporated into the Hindu Wills Act. We have been given by Mr. Pugh, who appears for the appellant, many cases which turn on the Statute of the English Wills Act, 1837; but the requisites for a valid Will under the English Wills Act differ substantially from the provisions of Section 50 of the Indian Succeession Act. In express terms, Section 9 of the English Wills Act requires that both the witnesses should be present at the same time and that they should both see the deceased execute the document as his Will. Section 50 of the Indian Succession Act, on the other hand, makes different provisions. It is provided by Section 50 of the Indian Succession Act, first of all, that the testator shall sign or affix his mark to the Will or that the Will shall be signed by some other person in the presence of the testator and by his direction. The second requisite is that 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 thereby intended to give effect to the writing as a Will; and thirdly, it is provided that the attestation should be made either on the testator signing the document in the presence of the two witnesses or acknowledging his signature; but it is expressly provided on thes terms of the Act that it is not necessary that both the witnesses should be present at the same time. Substantially the third clause relating to attestation takes the law back to what it was the law as to attestation of Wills under the Statute of Frauds. It is not necessary for the witnesses to be present at one and the same time. Then what is the custom in India relating to Wills executed, at any rate, outside the Presidency towns by Indian testators? There cannot be the slightest doubt that, at any rate, in the Wills in the vernacular, the ordinary place for execution is the top of the document. The English system of executing the document at the foot does not obtain usually amongst Indians. Their custom is to execute the document at the top. Ordinarily the signature of the executant of a document appears at the top right-hand corner, and when he executes the document himself, and not by an attorney, is accustomed to write 'by my own pen.' That is the ordinary practice. Now, what do we find in the present case? The deceased Woogra Mohan Thakur was a man of wealth and he was also, to a certain extent, a man of education. He spent some years in England and he was acquainted with the English language. That is manifest from the fact that this holograph Will shows that the deceased knew English fairly well. He made former Wills and this Will that he deposited on the 10th May 1913 with the Sub-Registrar of Assurances is clearly written throughout by the testator, Woogra Mohan Thakur. The document itself is engrossed on foolscap papers in the manner in which an English document would bo engrossed. The document consists of four pages, on each of which the signature of the deceased appears. At the top left-hand corner of the first page the signature is 'W.M. Thakur. By my own pen.' On the second page, it is signed 'W.M. Thakur.' On the third page also it is signed 'W.M. Thakur.' On the fourth and the lust page at the end there appears the signature 'Woogra Mohan Thakur, dated the 10th of May 1913 in the year one thousand nine hundred and thirteen only.' Against the signature or alongside the signature of the testator on the margin of the first page, four persons are said to have attested the Will and on each of the other three pages there appear the signatures of two of the four persons whose, names appear on the first page as the attesting witnesses. The only question is first of all, which is the operative signature of the deceased'? I feel no doubt that the operative signature is on the first page, W.M. Thakur. By my own pen. 'It seems to me clear that the signature of the testator placed there is the signature by which he intended to make the document an effective one. Then the next point is, Has it been shown that these signatures on the margin of the first page of the persons who are alleged to be the witnesses were subscribed by at least two of these persons animo attestandi, namely, attesting the Will of the deceased'? One of the signatures that appears on each of the four sheets is the signature of the wife of the deceased. She says that these signatures were obtained from her on the ground that they related to some totally different transaction and that the deceased then wrote his Will on the blank sheets of paper on which she had affixed her signatures. There is no evidence to show that that story is true. But it is highly probable that the deceased wished to get the signature of his wife somehow or other to this Will, on the ground that the provisions made, therein for the wife were extremely small having regard to the value of the estate. But there is other evidence on which, in my opinion, it cannot be doubted that this Will was properly executed by the deceased in the manner required by Section 50 of the Indian Succession Act. The first' witness on behalf of the plaintiff, the petitioner for Probate, is Balbhadra Thakur. He is a clerk. His evidence is that, he having read the Will did, at the request of the deceased, affix his signature to all the pages as a witness. It seems to me obvious that he duly attested the Will. The next witness is Surja Prosad. He is the Government Pleader of Bhagalpur. He is a man of position and his statement is that, on the morning of the 10th May 1913 before going to the Registration Office, the deceased brought the Will to him, that he read it and suggested that the deceased ought to make more a liberal provision for his wife but that the deceased refusing to do so, he subscribed his name to the Will as an attesting witness. The last witness is Harendra Krishna Bagchi. He is also a Pleader. He was consulted by the deceased with reference to the Will before its execution. He says, that he suggested alterations, by way of making a further provision for the wife, but that the deceased declined to listen to those suggestions. The Will was brought to him also on the morning of the 10th of May 1913 and the testator having acknowledged his signature, Harendra Krishna attested the Will as an attesting witness. It seems to me that that amply satisfies the provisions of Section 50 of the Indian Succession Act. The view put forward by the learned Counsel who appears for the appellant that some other course is required than what has been adopted in this case seems to me to be open to doubt on the wording of Section 50. One has not got to comply with the provisions of the third part of Section 50 down to the semicolon and then having done that start afresh from the semicolon. That has been decided; in the case of Mukta Nath Roy Chowdhuri v. Jitendra Nath Roy Chowdhuri 27 Ind. Cas. 677. On the wording of the section it seems to be amply clear that that is not what is required, I think, whatever be the view we may take as to how the signature of the wife was obtained, there cannot be any doubt on the clear evidence--evidence that cannot be doubted--that the deceased did acknowledge this document as his last Will in the presence of those persons whose names appear in the margin of the first page of the document purporting to be, his Will, and that they then at his request, subscribed their names as witnesses to the fact of the Will. That is amply sufficient to satisfy the terms of the Section 50. The fact that the deceased took the document and deposited it himself with the Sub-Registrar of Assurances, having endorsed on the cover that it contained his Will bearing date the 10th May 1913, also seems to me to showthat the deceased had taken considerable care that his Will was in due order. I think the learned Judge on the evidence in this case came to the only conclusion that was possible, namely, that the deceased did, in fact, execute this Will in manner required by Section 50 of the Indian Succession Act. That is the only issue involved in the case. That being so, I am of opinion that we should dismiss the present appeal and direct the appellant to pay to the respondent his costs of this Courts We assess the hearing fee at one thousand-rupees.

2. Richardson, J.--I agree.


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