THERESA Vs. FRANCIS JMISQUITA

JUDGEMENT

(1.) This is an application for probate of the alleged will of one Pedru Pascol Misquita who died on the 6th of August 1910 leaving a widow and an adopted son Francis. The will left the property, apart from legacies, to Francis with a direction to maintain the widow, and also a direction that if she left off living with Francis she should get Rs. 200. It is admitted that the landed property belonging to the deceased was transferred to Francis. The widow continued to live with him for some years, while he managed the property of the deceased. Then disputes arose amongst the family, and evidently suggestions were made that the will of Pascol should be disputed. As the learned Judge points out, Natal the-sister of the deceased and his nieces thought that they were entitled to a share of the property; one of them had even purported to sell her alleged share of the inheritance to a third party who had, on the strength of the sale, brought a suit against Francis. The result was, that although there was no necessity for Francis to apply for probate while the family was living in amity, when the suit was brought against him he had to prove the will. Accordingly he filed these proceedings for probate, when they were opposed by the widow and another relation of Pedru Pascol. The learned Judge found that the will had actually been executed by the testator himself by making marks on the will, and directed probate to issue.

(2.) That decision has been appealed against, and we have to consider whether the document before us has been executed according to the rules laid down by Section 50 of the Indian Succession Act. We cannot agree with the District Judge that the marks on the will which purport to be the marks of the testator were actually made by him, The marks appear altogether in seven places, and although the Vicar who wrote the name of the deceased at the end of the will and various other places said that the deceased made all the marks, he had to admit in cross- examination that he made two of the marks. But if the Vicar had written the words " mark of Pedru Pascol Misquita " leaving a blank space for the mark, and the testator had made the mark, the appearance of the marks in the will would certainly have been different. They evidently were made by the person who wrote the words. The question arises, therefore, whether we can hold that as the will has not been signed or marked by the testator, it has been signed by some other person in his presence and by his direction. I should be inclined to hold, provided the person who signs in the presence and by the direction of the testator at such a place that it will appear that it was intended thereby to give effect to the writing as a will, that the provisions of the section are complied with, and it does not matter whether there are other words written by that person so long as those words do not destroy the effect of the signature, so as to make it appear that the name of the person so signing is not to be taken as a signature intended to give effect to the writing as a will. Here the Vicar has written his name and purports to explain the meaning of the mark which he said was made by the testator. Setting aside that statement as not being entirely correct, and admitting that the Vicar himself made the mark, still there can be no doubt that what he was doing was intended to take effect as an execution of the will.

(3.) Then the question arises whether he was acting in the presence and under the directions of the testator. The general effect of the evidence makes it perfectly clear that this document was prepared on the 3rd, and that various persons assembled at the house of the testator, including the Vicar, the Khot s Karkun Sub-Registrar, when the writing at the end of this document was made, as well as the writings at various other places in it, and also the writings at the end of the admission of signature for the purposes of registration. Can it be suggested that all that took place without the knowledge and without the I superintendence of the testator of course if he was unconscious, and all that was done while he was unconscious, then undoubtedly it could not be said that this will was properly executed, it is not suggested that he was anything more than ill. The Vicar has said "I had affixed his signatures to the corrections and to the will and to the endorsement before the Sub-Registrar. I asked him before the Sub-Registrar whether I should affix his signatures, and he said yes. The marks of the cross were made by him. Bastiav Gobriel and Bastiav Sinav were present at the time and had attested at the instance of the deceased. The Sub- Registrar then took down deceased s admission of the will. I affixed his signatures to it at his request, and the Sub-Registrar took his thumb-impression. He was in his senses at the time. He was in full possession of his senses till the next evening when I gave him last sacrament or extreme unction." Unfortunately the Sub-Registrar has died since August 1910. Therefore his evidence is not available. But there is the thumb- mark on the will to bear out the statements of the Vicar, and it seems to me that we are entitled to hold that the will was properly executed if we come to the conclusion that the testator was conscious at that time, and assented to what was being done in his name. I think, therefore, the decree of the Court below must be confirmed, although not for the same reasons, and the appeal will be dismissed. As we have decided the case on a different ground from that on which the learned Judge decided it, there will be no order as to costs, Fawcett, J.