Patna High Court
Ram Avadh Upadhaya vs Jamuna Pandey on 6 January, 1954
Equivalent citations: AIR1954PAT360, 1954(2)BLJR254, AIR 1954 PATNA 360
JUDGMENT Narayan, J.
1. This appeal arises out of an application for the grant of Letters of Administration. The respondent" had filed an application before the learned District Judge of Shahabad praying that Letters of Administration be granted to him with regard to the estate of Jhagru Upadhaya who had executed a will dated 11-8-1945 in his favour. The present appellant, who happens to be an agnate of the late Jhagru Upadhaya, had filed an objection and his contention was that the will propounded by the petitioner was a forged and a fabricated document. He further asserted that even if the father of the petitioner had managed to get a will executed by Jhagru Upadhaya by defrauding him or exercising pressure upon him, no Letters of Administration could be granted to the petitioner.
2. The learned District Judge came to the conclusion that the will propounded by the petitioner was a genuine document and that no fraud had been practised for the execution of the will nor had the late Jhagru Upadhaya been deceived or imposed upon. He further found that the document had been validly executed and that the requirement of the statute had been fully complied with. In this view of the matter, the learned District Judge decreed the suit and directed that Letters of Administration with a copy of the will annexed be issued to the respondent.
3. The objector has, consequently, come up in appeal, and Mr. Tarkeshwar Nath who has argued this appeal on his behalf has submitted two points, the first being that the document cannot be deemed to be a document executed and attested according to law, inasmuch as the petitioner was not able to prove that it had been attested by two witnesses, and the second being that the requirements of Section 68, Evidence Act, cannot be deemed to have been fulfilled in this case.
4. I shall dispose of the second point first which, in my opinion, does not present any real difficulty. Though the document purports to have been attested by more than two witnesses, one of the attesting witnesses, Bamayan Ojha, has come as a witness on behalf of the objector and has denied his alleged signature on the document and except him and P. W. 1 the others have not been examined. The attesting witness examined in this case is one Lalmoni Sahai (P. W. 1) and it has not been contended before us that his evidence as to attestation by himself should not be accepted. Mr. Tarkeshwar Nath's submission has been that he does not prove the attestation by any other witness.
According to the petitioner's contention this Lalmoni Sahai has proved not only his own attestation but also the attestation by a witness called Ramnagina Ojha. and this Ramnagina Ojha, though he has signed the document on be-
half of the executant, Jhagru, is also to be regarded as an attesting witness. Whether Ramnagina is to be regarded as an attesting witness or not will be considered by me when I deal with the first point, but for the present I have to say that there does not appear to be any substance in the contention of the learned Counsel that execution by Jhagru and attestation by more than, one witness has not been established in this case, Lalmani's statement is that Ramnagina signed for Jhagru at his request, that Jhagru put his penmark, that he (Lalmoni) attested the will and that the several attesting witnesses signed in his presence. Quite manifestly, these statements go to show that whatever be the nature of the execution and the attestation, the whole thing took place in presence of Lalmoni. In other words, whatever was written by Ramnagina and whatever was done by the executant Jhagru was done in presence of Lalmani.
Besides Lalmani, there is another witness, P. W. 2, the father of the petitioner who also has stated that the will was duly attested and executed in his presence, and it appears from the evidence of this witness that Ramnagina is dead and that Bamayan Ojha is siding with the opposite party, Lalmani. Though he was cross-examined in detail with regard to certain matters, he does not appear to have been cross-examined with the intention of eliciting from him that the signature of Ramnagina was not made in his presence. No doubt, the words "in my presence" are not to be found in his statement that Ramnagina signed for Jhagru at his request, but if all the three sentences are read together, the conclusion seems to be irresistible that Ramnagina and the other witnesses signed and Jhagru put his pen-mark in presence of this witness. We have to judge-from the statements collectively whether the requirements of the statute have been complied with or not, and I am inclined to agree with Mr. Ragha Saran Lall that having regard to what was put to Lalmani in cross-examination, it will not be reasonable to contend in this appeal before us that he did not mean to say that Ramnagina's signature was not made in his presence.
Firstly, as I have already pointed out, there is no reason for supposing after having read the statements in examination-in-chief that Ramnagina's signature was not made in the presence of this witness. Secondly, if the statements made by Lalmani created any doubt in the mind of the objector, the only proper and honest course left to him was to cross-examine the witness with a view to eliciting from him that Ramnagina's signature was not actually made in his presence. There is a definite statement to the effect that Jhagru put his pen-mark that the witness attested the will and that the other attesting witnesses signed in his presence, and there is also the statement that Ramnagina signed for Jhagru at his request. The position is, thus, clear that Jhagru put his pen-mark and that Ramnagina signed his name at his instance, and in the presence of this witness. I am, therefore, of the opinion that in case Ramnagina can be deemed to be an attesting witness within the meaning of the law the attestation by him has been duly proved by the evidence of Lalmani.
I should also note here that even in the grounds of appeal, no specific point has been taken to the effect that Ramnagina's signature had not been proved by Lalmani. The grounds of appeal indicate that the objector's contention really is. that Ramnagina having signed for the testator could not be treated as an attesting witness. Mr. Tarkeshwar Nath referred to a decision of the Bombay High Court in -- 'Vishnu Ramkrishna v. Nathu Vithal', AIR 1949 Bombay 266 (A), in this connection, but this decision does not appear to have any relevance to the point raised by the learned Counsel in this case. In the Bombay case one attesting witness had signed the will on an acknowledgment having been made before him by the testatrix and an attestation by a second witness was not established at all. Certainly, the will could not be deemed to be a document validly executed and attested if the attestation of the second witness had not been established before the Court. The second contention urged by the learned Counsel is, therefore, not fit to succeed.
5. The first contention is, no doubt, a bit more substantial. The learned Counsel has submitted that because Ramnagina has signed the will on behalf of the executant Jhagru, he cannot be regarded as a competent attesting witness under the law. The requirement of the law is that the will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. It is further required that each of the witnesses shall sign the will in the presence of the testator, and, according to my finding, it must be deemed to have been established that if Ramnagina is to be regarded as an attesting witness, he had signed the will in the presence of the testator.
The real question, therefore, is whether Ramnagina, who is no other person than the person who had signed the will on behalf of the testator, can be regarded as a competent attesting witness, and Mr. Tarkeshwar Nath has relied on the words "or has seen 'some other person' sign the will" in Section 63(c), Succession Act. Undoubtedly, Ramnagina is the same person who had signed the will on behalf of the executant or the testator, and because he is no other person than the man who lias signed the will on behalf of the testator, the learned counsel has submitted that an attestation by him or the affixing of a signature by him will not make him a competent attesting witness.
6. The word "attest" has been the subject-matter of discussion and construction in several decisions, and in -- 'Bryan v. White', (1850) 163 ER 1330 (B), Dr. Lushington had said that "attest" means that the persons shall be present and see what passes, and shall, when required, bear witness to the facts. This decision was referred to with approval by the Judicial Committee in --'Shamu Patter v. Abdul Kadir', 35 Mad 607 (C). I should like to quote the following passage from the judgment of Ameer Ali J. in this case :
"The later cases are still more direct in the interpretation of the words 'attestation' and 'attested'. In -- '(1850) 163 ER 1330 (B)', Dr. Lushington in 1850 laid down that 'attest' means the persons shall be present and see what passes, and shall, when required, bear witness to the facts. In 1855, Lord Campbell, C. J., in --'Roberts v. Phillips', (1855) 4 El & Bl 450 (D), enunciated the same rule as regards the word 'attested', that the witnesses should be present as witnesses and see it signed by the testator. And the principle was given effect to in the House of Lords in -- 'Burdett v. Spilsbury', (1842-13) 10 Cl & F 340 (E). The Lord Chancellor summed up the conclusion in these words: "The party who sees the will executed is in fact a witness to it; if he subscribes as a witness, he is then attesting witness'. The meaning of the words 'attest' and 'attestation' has also been before the Courts under the Bills of Sale Act of 1878 (41 & 42 Vict. C. 31, Sections 8 & 14) and the interpretation put on them in -- '(1855) 4 El & Bl 450 (D)', and -- '(1850) 163 ER 1330 (B)', has invariably been followed."
7. I say with respect that if the Courts in India have on the basis of this dictum laid down that any person who was present and witnessed the execution and whose name appears on the document is to be regarded as a witness competent for proving the execution, that view should be regarded as sound. Though the language of Section 63 (c) shows that the attesting witness should either have seen the signing or the affixing of the mark by the testator or some other person signing the will on his behalf, if the execution is complete as soon as the testator has signed or affixed his mark, the person who claims to have witnessed such execution of the deed by the testator has to be regarded as a competent attesting witness.
It was ruled in -- 'Govind Bhikaji v. Bhau Gopal', AIR 1916 Bom 123 (P), that if the scribe of a deed authenticates the mark made by the executant and thus vouches the execution by him, he is to be regarded as a competent attesting witness. Though in the particular deeds which were the subject of consideration by their Lordships there might have been, on the face of the documents, certain more attesting witnesses, at the trial the deeds were sought to be proved by the testimony of one of the witnesses and the scribe. The executant of these documents had made the mark of a dagger which was being represented as his signature, and this mark had been described by the scribe of. the deed. What the scribe had actually written was as follows :
"The mark of a dagger representing the signature of Gopal Bapu Lad made by him with his own hands. The handwriting of Keshav Chintaman Vaishampayan."
This Keshav Chintaman was the scribe, and he had deposed in the case that he had witnessed the execution of the bond by Gopal, inasmuch as he had seen the affixing of the mark by Gopal. The Court below had taken the view that the mere making of the mark was not the signature of the executant and that it was the description given by the scribe which had completed the signature or the execution by the executant. This view was held by their Lordships to be erroneous, and they pointed out that in the case of an illiterate executant his mark was his signature and that it was independent of any writing by which the mark might be explained. Their Lordships referred to Section 3, Clause 52, General Clauses Act, which explains the word "sign" with reference to a person who is unable to write his own name. And their Lordships further observed that it is nowhere laid down as essential that an attesting witness must be formally described as such on the face of the document. While discussing the nature of the signature made by the scribe their Lordships pointed out that when the scribe signed his own name under the description of the mark, his object in so doing presumably was to authenticate the mark, that is to say, to vouch the execution. In other words, the last signature made by the scribe was taken to be a signature made by the scribe not in the capacity of a scribe but in the capacity of an attesting witness.
8. This case was referred to with approval by Mookerjee J. in -- 'Sristidhar Ghose v.
Rakhyakali Dasi', AIR 1922 Cal 168 (G), and I should like to quote the passage from Mookerjee J.'s judgment wherein he has indicated his own view about the decision:
"There, an illiterate person signed a mortgage deed by putting his mark to it, which mark was described by the scribe of the deed. The deed was attested by two independent witnesses. It was ruled that the deed had been duly executed and attested. The execution was complete when the mortgagor, unable to write his name, placed his mark thereon. The function of the scribe ended when he signed his name at the conclusion of the body of the document; he thereafter signed his own name, under the description of the mark made by the executant, with a view-to authenticate the mark, that is, to vouch the execution of the deed by the marksman, in other words, to act as an attesting witness."
This case has also been referred to with approval in a subsequent decision of the Bombay High Court in -- 'Yacubkhan v. Guljar Khan', AIR 1928 Bom 267 (H). In -- 'Badha Kishan v. Fateh Ali Ram', 20 All 532 (I), the High Court of Allahabad held that a deed may be legally proved by the evidence of the scribe thereof who has signed his name, but not explicitly as an attesting witness, on the margin, and had been present when the deed was executed.
9. In -- 'Dinamoyee Debi v. Bon Behari', 7 Cal WN 160 (J), a Division Bench of the Calcutta High Court had to deal with a case where a lady had executed a mortgage-deed by putting her finger mark to the same, and a person who had seen her put the finger mark had written her name at her request and also the words "by the pen of" preceding his name written by himself. It was ruled that the document had been executed by the lady as soon as she had put the mark and that the person who signed on her behalf at her request was to be regarded as a competent attesting witness, the expression "by the pen of" used by him being a mere surplusage. Their Lordships pointed out that what is said to have been attested must have taken place in the presence of the attesting witnesses and their Lordships found in the particular case before them that what had been attested was the execution by the lady which had been done by the mere putting of a mark. It is important to note so far as this decision is concerned that the words "by the pen of" were treated as a mere surplusage.
This decision was referred to with approval by Mookerjee J. in the case of -- 'AIR 1922 Cal 163 (G)', a decision on which some reliance has been placed by Mr. Tarkeshwar Nath. This decision was also referred to with approval by Rankin C. J. in a Bench decision of the Calcutta High Court reported in -- 'Abinash Chandra v. Dasarath Malo', AIB 1929 Cal 123 (K). The learned Chief Justice of the Calcutta High Court was not inclined to take any different view, he rather having emphatically pointed out that a person may be a witness to the execution of a mortgage or a will and yet may not have written his name at the time by way of saying that he was a witness. In fact, not only in this decision but in several other decisions as well it has been pointed out that in India no formal attestation clause is necessary. In -- 'Rambahadur Singh v. Ajodhya Singh', AIR 1916 Pat 210 (L), a Division Bench of this Court definitely held that a person, even if he be the scribe, if he sees a deed executed, is in fact a witness to it and that if he subscribes as a witness he is an attesting witness within the meaning of Section 68, Evidence Act.
10. With the greatest respect for the submission made before us by Mr. Tarkeshwar Nath I must point out that the decision in -- 'AIR 1922 Cal 168 (G)' is not helpful to him, and we cannot read the observation of Mookerjee J. that one object of the statute in requiring attestation is to ensure identity of person and to prevent the fraudulent substitution of another document and that for the attainment of these and other objects, two attesting witnesses are necessary when the executant is literate, as shorn of the context in which the observation was made. What had happened in this case was that Bhola Nath Ghose, the scribe, had written the body of the document, written the name of the executant, written the name of one Hari Pal as an attesting witness and signed his own name as an attesting witness. This was not a case in which the executant had made any mark by way of execution, and it is Bholanath Ghose who was all in all so far as the document was concerned.
It was in this context that his Lordship pointed out that the objects' of the statute could not be deemed to have been carried out in this particular case, and I respectfully agree with his Lordship's observation that the term "executed" signifies the acts required of the person who makes the deed either himself or through a representative, that the term "attested" signifies the act of the witnesses who see the execution and that the same person cannot possess the two-fold capacity. If the execution is only through representative, that representative cannot be competent attesting witness.
11. The distinguishing feature is that in the case before his Lordship there was nothing to indicate the execution by the executant except the signature made on his behalf by the scribe, and so whatever the scribe had done was to be taken as the execution by the executant. It will, certainly, be an unsound proposition to put forward that a person who signs at the request of the executant can also become an attesting witness, and if any such proposition is put forward, it would offend against the provision contained in Section 63 (c), Succession Act, and would violate the well-established principle reiterated bv Mookerjee J., in this case. But the position certainly alters as soon as it is found that a mark has been put by the executant for the simple reason that the statute does lay down that there is a sufficient execution if the executant merely puts a mark. Mookerjee J. did affirm the decision of Fletcher and Walmsley JJ. in -- 'Rajani Kanta v. Panchananda', AIR 1919 Cal 550 (M) in which Fletcher J. had observed as follows:
"The mortgagor not being able to sign his name, the document was executed on his behalf by Uma Nath, and it is found and is supported by an inspection of the mortgage deed that no mark or seal or thumb impression of the mortgagor appears on the mortgage deed."
Thus, on a careful reading of this decision as well as the decision of Mookerjee J. in the case of -- 'AIR 1922 Cal 168 (G)' it is obvious that their Lordships never meant to lay down that the execution is not complete as soon as a mark or a seal is put by the executant, and it is further clear from a perusal of these judgments that their Lordships did not think of differing from the view which had been taken in the case of -- '7 Cal WN 160 (J)', which, in my opinion, is a direct authority in support of the proposition that the execution is complete as soon as a mark is put by the executant and that if a person thereafter signs on behalf of the executant, he is to be regarded as a competent attesting witness within the meaning of the law.
12. Mr. Tarkeshwar Nath next relied on a decision of the Madras High Court in -- 'Radha Krishna Mudaliar v. Subraya Mudaliar', AIR 1917 Mad 900 (N). In this case the finding was that the testatrix touched the pen and gave it to one Doraiswarai Aiyangar who had written in Tamil. "
This mark x Papathiammal.
This mark taken.
D. V. Doraiswami Aiyangar."
Naturally, their Lordships pointed out that the mere handing the pen to Doraiswami Aiyangar who had affixed the mark in her presence could not be regarded as an affixture of the mark by the testatrix such as is required by the statute. If the law contemplates, as it does, that the mark should be affixed by the testator himself, then the requirement of the law cannot be deemed to have been fulfilled if the mark is affixed by somebody else to whom the pen is handed over by the executant. I, therefore, think that this decision need not trouble us at all.
'In the matter of the petition of Hemlota Dabee', 9 Cal 226 (O). which is another decision relied on by Mr. Tarkeshwar Nath as well, the testator had not himself signed the will, but some other person had signed it in his presence and under his direction. In the circumstances, it could not but be held that besides this other person there must be two witnesses who must have signed the will in the presence of the testator. This decision also, therefore, can be of no assistance to the appellant before us.
Lastly, the learned counsel referred to a Bench decision of this Court in -- 'Bulaki Mahton v. Mt. Dulia', AIR 1941 Pat 368 (P). Apparently, the judgment of Varma J. seems to indicate that Wazir Pande, who had signed on behalf of the two executants and as against their thumb-impressions, was not taken to be a competent attesting witness. But the full facts of the case cannot be ascertained from the report, and particularly I am not able to find in his Lordship's judgment any observation which can go to show that the two thumb-impressions had been proved to be the thumb-impressions of the executants. It is also noteworthy that towards the end of the judgment his Lordship says that the evidence of Wazir Pande, though he speaks "to what happened at the time of the execution of the will and also at the time of registration thereof," falls short of the required proof that any witness attested the will at the time of its execution. This finding was conclusive of the case and conclusive of it as against the person who had propounded the will. Probably, it is because of this that their Lordships wrote out a very short judgment in which the point which has been discussed in detail in several decisions, some of which have been cited by me, has not at all been considered. If their Lordships referred to -- '9 Cal 226 (O)', that is not by way of approval, but only with a view to show that the Judicial Commissioner had relied on this decision. In my opinion, even this decision can be of no assistance to the appellant, apart from the fact that it does not discuss the point with which we are faced in this litigation.
13. My conclusion, therefore, in agreement with the learned District Judge is that Ramnagina has to be regarded as a competent attesting witness and that for the reason that the executant had put his mark and had thus executed the document already, that is, before any signature could be made by Ramnagina. The further impor-
tant fact to note is that the endorsement by Ramnagina consists of two parts, or I should say that really there are two endorsements by him. The first endorsement can be translated as follows:
"Signed Jhagra Upadhya. I have executed this will. I have got the contents of the deed read over. Per pen of Ramnagina Ojha."
And the second endorsement is, "Signed Ramnagina Ojha. In my presence Jhagru Upadhya made his pen-mark."
If in spite of the mark which has been put by the testator, the appellant asks us to read the first endorsement as an endorsement on behalf of the executant, there is no reason for supposing that the second endorsement is also an endorsement made on behalf of the executant. In the second endorsement Ramnagina says that the executant has put the mark in his presence, and he adds the word "Ba-kalam khas." Even if, therefore, the first endorsement is regarded as an endorsement on behalf of the executant and is rejected as an endorsement made by an attesting witness, the second endorsement ought to be regarded as an endorsement made by competent attesting witness.
The only reasonable inference that we can draw after reading the second endorsement is that this endorsement was made by Ramnagina Ojha in the capacity of an attesting witness. I need not repeat that no particular form of attestation is required under the law and, as such, this second endorsement must be regarded as an endorsement. made by Ramnagina Ojha as an attesting witness. What Ramnagina Ojha has said in the first endorsement about the execution by the testator is to be regarded as a surplusage or as an explanatory label, inasmuch as the execution became complete as soon as the executant put his mark and whatever Ramnagina wrote thereafter was only by way of explanation. The authorities say that a person making such an endorsement is to be regarded as a competent attesting witness. And the second endorsement is an endorsement of attestation, pure and simple, and Ramnagina Ojha certainly becomes a competent attesting witness in this particular case by virtue of this second endorsement, if for no other reason.
14. In the result, therefore, I must dismiss this appeal with costs.
Jamuar, J.
15. I agree.