KABIRAM Vs. ANANDIRAM

JUDGEMENT

(1.) THIS appeal arises out of a probata proceeding. Anandiram Sut, plaintiff, applied for the probate of a will said to have been executed by Kinaram Sut, deceased, who, according to the allegations in the petition for probate, died on 4th Ashar 1355 B.S. The case of Anandiram, respondent, was that Kinaram, deceased, bequeathed his property of the value of Rs. 233 (according to Collector's assessment) to him by a will duly executed. He claims to be the executor and the sole legatee. The claim was resisted by Kabiram. The main plea raised by him was that the will had not been executed by Kinaram, deceased. He was not at Kayapani where the will was said to have been executed. It was also pleaded that he did not possess testamentary capacity at the time. On behalf of Anandiram, respondent, two witnesses were examined. He himself also appeared in the witness box. No evidence was led on behalf of Kabiram, appellant. Of the two witnesses examined by Anandiram, one was an attesting witness whose attestation of it was indicated by a mark. The learned Subordinate Judge on a consideration of evidence has come to the conclusion that the will was duly executed and attested and the testator was in the full possession of his senses at the time of its execution. He therefore ordered a probate of the will to issue. Kabiram has appealed.

(2.) THE Learned Counsel for the appellant has contended in the first place that due execution of the will has not been proved. We have gone through the evidence and we agree with the learned Subordinate Judge that the evidence led on behalf of Anandiram establishes the fact that Kinaram, deceased, did execute the will in the presence of witnesses who attested the document. The Goanbura an attesting witness and the scribe are both disinterested persons. There is no reason why their testimony on the point should be discarded particularly in the absence of rebuttal.

(3.) IN Maikoo Lal v. Santoo,, 58 All. 1064 F.B. The same view as taken. We are in respectful agreement with the view taken in these cases and hold that if an illiterate attesting witness can validly attest the will by placing his mark or thumb impression on it, placing of a mark or thumb impression would, in such circumstances, meet the requirements of law in view of the definition of the word 'sign' as given in the General Clauses Act.