NIRODE MOHAN ROY Vs. CHARU CHANDRA MAZUMDAR

JUDGEMENT

(1.) The question for decision in this appeal is whether the signature of one Sarat Chandra Chattopadhyay who, apart from having written the will, saw the testator execute the will and affixed his signature in the presence of the testator is sufficient attestation within the meaning of Section 63, Succession Act. The testator Chandra Mohan Roy had in the year 1924 executed a will by which he left certain properties to his two nephews (brother's sons), Kshirode Mohan Roy and Nirode Mohan Boy and left the residue to his daughter's sons. In 1926, he executed another will which is the subject-matter of the present litigation and by this will he left certain properties to Kshirode Mohan Roy and the residue to his daughter's sons. Chandra Mohan Roy, the testator, disappeared shortly after the execution of this will in 1926 and has not been since heard of by the persons who are likely to hear of him if he was living. Charu Chandra Mazumdar, who is Chandra Mohan's daughter's son, applied for letters of administration with a copy of the will annexed and citation having issued on the brother's sons, Nirode Mohan entered caveat. The grounds on which he raised objection were that the alleged will has not been executed by Chandra Mohan; that it had not been attested according to law and that Chandra Mohan at the time of the alleged will had no testamentary capacity.

(2.) The learned Probate Court has come to the conclusion that the will was duly executed, attested in accordance with law and that Chandra Mohan had testamentary capacity at the time of the alleged will. It has accordingly ordered letters of administration with a copy of the will annexed to be issued to the applicant Charu Chandra Mazumdar.

(3.) In this appeal by Nirode Mohan Roy, the findings of the trial Court on the question of the execution of the will by Chandra Mohan Roy or on the question of his having testamentary capacity at the time of the will are not disputed. The one point on which the appeal has been pressed by Mr. Ghose appearing on behalf of the appellant is that assuming that Sarat Chandra Chattopadhyay, the scribe of the will, affixed his signature in the presence of the testator, this would not amount to attestation within the meaning of law. Mr. Ghose contends that while it is necessary for such an act of signature to amount to attestation that the signatory must have seen the testator sign the document and must have signed it himself in the presence of the testator, these facts are not sufficient for the act to amount to attestation, but that it is also necessary that at the time the signature was affixed this signatory did so by way of saying that he had seen the execution. He admits that no words are necessary to be actually put on the document to the effect that he had seen such execution; but it is necessary, according to him, that the Court from a consideration of all the circumstances including the position of the signature in the document and the evidence of the witnesses must be in a position to hold that at the time the signature was affixed, the signatory did do so by way of saying that he had seen the execution. Mr. Ghose has tried to convince us that in this case the circumstances and the evidence do not justify such a conclusion.