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PETITIONER: NAGULAPATI LAKSHMAMMA

       Vs.

RESPONDENT: MUPPARAJU SUBBAIAH

DATE OF JUDGMENT:       15/04/1998

BENCH: G.N. RAY, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SRINIVASAN, J.      The appellant  herein is  one of  the four daughters of Madamanchi Velugondaiah  who had  no son.  He died  in  1946 leaving his widow Punnamma and three daughters as his eldest daughter  had   predeceased  him   leaving   one   daughter. Velugondaiah had  left several properties some of which were dealt with  by Punnamma  by execution  of settlement  deeds. Dispute arose  between the  parties resulting in three suits O.S. Nos.  186/71 and  52.75 on  the file of the subordinate Judge, Ongole. The appellant was the first defendant in O.S. 186  and  187/71  and  plaintiff  in  O.S.  No.  52/75.  The respondent who  was  the  son  of  the  second  daughter  of Velugondaiah was  the second  plaintiff in  the two suits of 1971 and  the only  defendant in  the suit of 1975. Punnamma who was  the first  plaintiff in  the two suits of 1971 died during the  pendency thereof and the respondent was recorded as  her legal representative. 2.   Though several  issues were raised in the suits, we are concerned only with one of them which was the pivotal issue. According to  the appellant  Velugondaiah executed a will on 2.7.45 bequeathing  his properties  in a  particular manner. The genuineness of the will was challenged by the respondent and Punnamma.  The Subordinate  Judge held that the will was proved by  the appellant  to be  true  and  valid.  On  that footing the  suits were  disposed of by grant of appropriate reliefs. On  appeals, the  District Judge,  Ongole concurred with the  Subordinate Judge  and  dismissed  the  same.  The matter was  taken in  second appeals  to the  High Court  of Andhra Pradesh. 3.   At this  stage, it is better to advert to the following undisputed facts. The will purports to have been attested by five persons.  Two of  them had  signed. The other three had not affixed  their thump  impressions or made any mark. They have been described as ‘Nishanis’. It is also written in the will as  against their names "LTI mark of ...." though there is no  thumb impression  or mark  actually. Out  of the  two attestors who had signed, one was dead and the other was not examined though  admittedly alive.  One of the three persons described as "Nishanis", namely, Kondaiah son of Madhumanchi

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Narayya was  examined as DW 2. Admittedly he had not affixed his thumb impression or made any mark on the will. While the Subordinate Judge  and the  District Judge treated him as an attesting witness  and believing  him held  the will  to  be proved, the  High Court  held that he was not an attestor in the eye of law and his evidence could not prove the will. It is also  worthwhile extracting  the following passage in the judgment of the High Court:      "...It is  no dout  true that  both      the  Courts   have   accepted   the      evidence of  DW 2  who said that he      attested the will. Beyond that DW 2      does not  say anything. He does not      mention the person, who has written      his name.  He stated  in the cross-      examination that  nobody asked  him      to put  his thumb impression and he      was   asked    by    one    Karanam      Venkatappaiah to  touch the pen. He      does not  even say  who  wrote  his      name. Karanam  Venkatappaiah is not      even  the   scribe.  There   is  no      evidence that  his name was written      at  his   instance  or   under  his      direction or  in his  presence. The      observation of  t he  Courts  below      that his  name was  written by  the      scribe at  his instance is an error      apparent  on   the  face   of   the      record.." On the  aforesaid reasoning,  the High  Court held  that the will was  not proved  as required  by law  and  allowed  the second appeals,  setting aside  the  judgments  and  decrees passed by the Courts below. 4.   Aggrieved thereby,  the appellant  has approached  this Court. The  only contention urged by the appellant’s learned counsel is  that DW  2 is an attesting witness in as much as the scribe had on his directions written "L.T.I. of Kondaiah son of  Madhumanchi Narayya".  According to  her, DW  2  had thereby ‘signed’  in the will as an attestor. She has placed reliance on  the definition of the word ‘signed’ in Stroud’s Judicial Dictionary and drawn our attention to the decisions of some High Courts. 5.   Thus the question of law which arises for consideration is whether  a person  who has not himself signed or made any mark on  a will  can be  said to  be an attesting witness if another person  on his authority or direction signs or makes a mark  or writes  his name  on his behalf. Before examining the relevant provisions of law and the decisions of the High Courts, we  would like  to place  on  record  that  we  have perused the  deposition of  DW 2  and  we  are  entirely  in agreement with  the observations of the High Court contained in the passage extracted earlier. The High Court has stopped short of  giving a factual finding that DW 2 was not present at the  time of the execution of the will. Probably the High Court hesitated  to do  so as it was dealing with the matter in its  second appellate stage. Hence the High Court was and we are  now obliged  to consider  and decide the question of law. 6.   Section 68  of the  Indian  Evidence  Act  enjoins  the calling of at least one attesting witness for the purpose of proving execution  of a  will.  Section  63  of  the  Indian Succession Act  which prescribes how an unprivileged will is to be executed reads as follows:      63.   Execution   of   unprivileged

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    wills. -  Every testator, not being      a soldier employed in an expedition      or engaged  in actual  warfare, (or      an airman  so employed or engaged,)      or a  mariner at sea, shall execute      his will according to the following      rules:           (a) 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.           (b) 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  intended   thereby  to   give      effect to the writing as a will.           (c) The will shall be attested      by two  or more  witnesses, each of      whom has  seen the testator sign or      affix his  mark to  to the  will or      has seen some other person sign the      will, in  the presence  and by  the      direction of  the presence  and  by      the direction  of the  testator, or      has  received   from   testator   a      personal  acknowledgment   of   his      signature  or   mark,  or   of  the      signature of such other person; and      each of  the witnesses  shall  sign      the  will   in  the   presence   of      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. 7.   The  Section  makes  a  vital  distinction  between  the testator and the attestors in the matter of signing the will. The testator  may sign  or affix  his mark  himself or direct some other  person to  sign in  his presence.  The reason for such a  provision is  quite obvious.  Many a time, people who are desirious  of making  testamentary  dispositions  may  be physically incapacitated from signing their names or affixing their marks  on account  of illness  or  other  causes.  Such persons  should not be deprived of an opportunity of making a will. Such  persons can  instead of signing or affixing their marks themselves  can direct  some other  person to  sign  in their presence. But in the case of attestors such an enabling provision is  absent. The  section expressly states that each of the  witness shall  sign the  will in  the presence of the testator. The privilege or power of delegation, if we may say so, is  not available  to the  attesting witnesses  under the section. When  the same section makes a distinction expressly between a  testator and  an attestor  it is  not possible  to accept the  contention that  an attestor can also direct some other person  to sign  or make  a mark  of his  behalf. If  a witness to  the execution of the will chooses to do so, he is not an attesting witness as there is no attestation by him as contemplated by  Section 63(c)  of the Indian Succession Act. Consequently, he  will not  be an  attesting witness  for the purpose of Section 68 of the Indian Evidence Act. 8.   According to  learned counsel  for  appellant  the  word ‘sign’ occurring in the last part of Section 63(c) would mean "sign his  name or affix his mark himself or get it signed by

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some other  person in  his presence any by his direction." In support of  this argument,  reliance is  placed  on  Stroud’s Judicial Dictionary.  At Pages  2431 and 2432 Vol. 5 of Fifth Den., the word "signed" is defined as follows:      Signed;  Signature.   (1)  Speaking      generally,  a   signature  is   the      writing, or  otherwise affixing,  a      person’s  name,   or  a   mark   to      represent his  name, by  himself or      by   his   authority   (R.V.   Kent      Justices L.R.  8 Q.B. 305) with the      intention   of   authenticating   a      document as  being that  of, or  as      binding on,  the person  whose name      or mark  is so  written or affixed.      In  Morton  V.  Copeland  (16  C.B.      535), Maule  J.,  said,  "Signature      does not, necessarily, mean writing      a person’s  Christian and  surname,      but any mark which identifies it as      the act  of  the  party."  but  the      reporter adds  in a note, "provided      it be  proved  or  admitted  to  be      genuine, and be the accustomed mode      of signature of the party." Without      more, "to  sing" is not the same as      "to subscribe."           (2) The  minute requisite of a      signature will  very  according  to      the  nature  of  the  documents  to      which it is affixed, e.g.      (a) Deeds;      (b) Wills"      (c) Contracts;      (d)   Bills    of   exchange    and           promissory notes;      (e) Solicitors’ bills;      (f) Electioneering paper;      (g) Judge’s orders and legal           proceedings;      (h) Office copies      and "in  every case where a statute      requires a  particular document  to      be signed  by a  particular person,      it must  be a  pure question on the      construction of the statute whether      the  signature   by  an   agent  is      sufficient:  (per  Bowen  L.J.,  Re      Whitley 32 Ch. D. 337). 9.   We are  unable to accept the argument. When there is an express statutory  provision in  this regard, the definition contained in  the Judicial  Dictionary cannot  be invoked by the appellant. 10.  In some  case decided  before the advent of the General Clauses Act, 1897 some High Courts took the view that it was necessary for  the  validity  of  a  will  that  the  actual signature, as  distinguished from  a mere  mark, of at least two attesting  witnesses should  appear on  the face  of the will. See D. Fernandez versus R. Alves ILR 3 Bombay, 382 and Nitye Gopal  Sircar versus Nagendra Nath Mitter Mozumdar ILR 11 Calcutta,  429. The  General Clauses  Act which came into force in  1898 contained  a definition of the word ‘sign’ in Section  3   (56)  thereof  as  follows:  "sign",  with  its grammatical variations  and cognate expressions, shall, with reference to  a person  who is  unable to  write  his  name,

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include "mark"  with its  grammatical variations anc cognate expressions;". But  even thereafter,  in a  case which arose under a  Transfer of  Property Act,  a single  Judge of  the Madras High  Court held  in Venkataramayya and others versus Nagamma, A.I.R.  1932 Madras 272 that a mark by an attesting witness although valid at the date of execution of a deed of gift made  in 1912 should be held to b e inoperative in view of the  law as  amended on the point by Act 27 of 1926 which was expressly  made retrospective  in  effect.  The  learned Judge referred  to the  definition of the word ‘attested’ in Section 3  of the  Transfer of Property Act and held that in as  much   as  the  witnesses  were  required  to  sign  the instrument it  was not sufficient if they made their mark or affixed their  thumb impression.  It has  to be  pointed out that the  definition of  the word  ‘attested’  contained  in Section 3  of the  Transfer of  Property  Act  is  almost  a verbatim reproduction  of sub-section  (c) of  Section 63 of the Indian  Succession Act.  However  the  judgment  of  the learned single  Judge referred  to  above  was  reversed  on appeal by  a Division Bench in Nagamma versus Venkataramayya and others  A.I.R. 1935  Madras 178(2).  The Bench held that the the  definition of  ‘sign’ in  General Clauses Act would apply and  therefore the  word ‘sign’  in Section  3 of  the Transfer of  Property  Act  included  also  a  mark  by  the attestor. 11.  A single  Judge of  the Calcutta  High  Court  held  in Rajani Mandal  versus  Digindra  Mohan  Biswas  A.I.R.  1932 Calcutta 440  that in  Bengal there was a customary practice among illiterate  persons to  sign documents by touching the pen and  authorising another person to sign by writing their name  for   them  in   their  presence,   and  therefore  an endorsement of  payment of  interest made  by the scribe and also  signed  by  him  on  behalf  of  the  debtor  who  was illiterate  and   made  no  mark  beneath  the  endorsement, amounted to  acknowledgement of  payment of  interest by the debtor within  the meaning  of Section  20 of the Limitation Act (1908). It is not necessary in this case to consider the correctness of that judgment. 12.  A Full  Bench of  the Allahabad  High Court  upheld the validity of  ‘attestation’ of  a will when it found that the attesting witnesses  had affixed their marks. The Full Bench agreed with  the view expressed by the Division Bench of the Madras High Court in Nagamma versus Venkatramayya and others AIR 1935 Madras 178 (2) referred to earlier. 13.  The Bombay  High Court  took a  similar  view  in  Annu Bhujanga Chigare  versus Rama  Bhujanga Chigare  A.I.R. 1937 Bombay 389  and held  that a will was validly attested if an illiterate attesting witness made a thumb impression on it. 14.  Our attention  has been drawn to two judgments of Patna High Court  which arose  under the Transfer of Property Act. In Dahu  and another  versus Jamadar  Rai and  others A.I.R. 1951 Patna  368, the  court held  that when  one of  the two attesting witnesses to a mortgage signs for himself and also on behalf  of the  other at his instance and in his presence the signature  would ba  good signature,  though no  mark is affixed by the other witness and the mortgage, therefore, is valid as  duly attested.  The Division Bench referred to the judgment of  the Bombay High Court in D. Fernandez versus R. Alves I.L.R.  3 Bombay  382 and  the Calcutta  High Court in Nitye Gopal  Sircar versus  Nagendra  Nath  Mitter  Mozumdar I.L.R.  11  Calcutta  429  and  observed,  "obviously  other consideration arise  with regard tot he Transfer of Property Act." Though  the language  in Section  3 of the Transfer of Property Act  in the definition of ‘attested’ is the same as language in  Section 63 (c) of the Indian Succession Act, it

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might be possible to make a distinction between testamentary and non-testamentary  instruments. It might also be possible to contend  that Section  63 of  the Indian  Succession  Act deals with  both ‘execution’ and ‘attestation’ of a will and it should  be interpreted  in a  particular  manner  whereas Section 3  of the  Transfer of Property Act defines only the expression ‘attested’ and it does not deal with execution as such. In our opinion, it is not necessary for us to consider whether  a  distinction  can  be  maintained  between  cases arising under the Transfer of Property Act and cases arising under the Indian Succession Act. The ruling in the aforesaid case has  no application in the present matter in as much as the  Division   Bench  has   expressly  opined   that  other considerations arise  with regard  to Transfer  of  Property Act. 15.  The other  decision of  the  Patna  High  Court  is  in Bishwanath Raut  and others  versus Babu Ram Ratan Singh And others A.I.R. 1957 Patna 485. That case related to a deed of gift. The  Division Bench  held that  a  document  can  b  e attested by  illiterate person by a signature affixed by the scribe. Though  the Division  Bench referred  to the earlier cases, it  failed to take note of the principle thereof. The Bench referred  to the  Full Bench decision of the Allahabad High Court in Maikoo Lal and another versus Santoo, Objector and  others   A.I.R.  1936  Allahabad  576  and  erroneously purported to  follow it. The Division Bench over looked that the Allahabad Full Bench dealt with the case of a will under the provisions  of the  Indian Succession  Act and  had only ruled that the affixing of a mark by the ‘attestor’ would be sufficient  for   the  purpose  of  valid  attestation.  The Division  Bench   did  not  also  correctly  understand  the decisions in  D. Fernandez versus R. Alves I.L.R. III Bombay 382 and  Nitye Gopal  Sircar  versus  Nagendra  Nath  Mitter Mozumdar I.L.R. 11 Calcutta 429. 16.  A single  Judge of the Patna High Court had occasion to consider a  case under the Indian Succession Act in Kawaldeo Singh and  another versus Hari Prasad Singh and another 1962 BLJR 939.  The learned  Judge held  that it is not necessary that an  attesting witness must either sign himself or put a thumb mark  on the document and if a third person has signed on his  behalf, the  attestation is valid. The learned Judge has not  referred to  any  prior  ruling  or  discussed  the question in  any manner.  He has  not even  adverted to  the language of  Section 63(c)  of the Indian Succession Act. He has proceeded as if the proposition is axiomatic. We have no hesitation to  hold that  the said judgment is erroneous and not good law. 17.  Though there is no direct decision of this court on the above question,  the ruling  of the  Constitution  Bench  in Commissioner of  Agriculture Income  Tax  Act,  West  Bengal versus Keshab  Chandra Mandal  A.I.R.  1950  S.C.  265  will govern the  situation. The  question   before the  court was whether the  declaration in  the form  of  return  submitted under Bengal  Agricultural  Income-tax  Act  which  was  not signed by  the assessee  himself who  was an  illiterate but signed by his son should be treated as properly signed and a valid return.  The High  Court answered  the question in the affirmative. That  was challenged  by  the  Commissioner  of Agricultural Income-tax  in this  Court. It  was found  that there was  no physical  contact between the assessee and the signature appearing  on the  return. This court answered the question in  the negative  and reversed  the judgment of the High Court by holding that if on a construction of a statute signature by  an agent  is not  found permissible  then  the writing of  the name  of the  principal by the agent however

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clearly he  may have been authorised by the principal cannot possible be  regarded as  the signature of the principal for the purposes of that statute. The court rejected an argument of hardship  or inconvenience  and observed that hardship or inconvenience cannot  alter  the  meaning  of  the  language employed by  the legislature  when such  meaning is clear on the face  of the statute or the rules. It is advantageous to quote the following passage which is instructive:           "It is  quite true  that  when      signature   by    an    agent    is      permissible,  the  writing  of  the      name of  the principal by the agent      is regarded as the signature of the      principal himself.  But this result      only follows when it is permissible      for the  agent to  sign the name of      the principal. It on a construction      of a  statute signature by an agent      is not  found permissible  then the      writing  of   the   name   of   the      principal  by   the  agent  however      clearly he may have been authorised      by the principal cannot possibly be      regarded as  the signature  of  the      principal for  the purposes of that      statute.  If   a  statute  requires      personal  signature  of  a  person,      which   includes    a   mark,   the      signature or  the mark must be that      of the  man himself.  There must be      physical   contact   between   that      person and  the  signature  or  the      mark put on the document." 18.  With great  respect, we  adopt the  aforesaid reasoning and hold  that for  the purpose  of valid  attestation under Section 63  of the  Indian Succession  Act it  is absolutely necessary that  the attesting  witness should either sign or affix his  thumb impression  or mark  himself as the Section does not  permit  an  attesting  witness  to  delegate  that function to  another. It follows that in the present case DW 2 is  not an  attesting witness  and in  the absence  of the evidence of  any other attesting witness the decision of the High Court that the will propounded by the appellant has not been proved  is unassailable. Hence the appeals fail and are dismissed. As  the parties  are closely  related, we  direct them to bear their respective costs.