ALAPATI VENKATARAMAYYA Vs. ALAPATI NAGAMMA

JUDGEMENT

(1.) The suit out of which this second appeal arises was to recover possession of a house under a gift-deed executed by the mother (defendant 2) of the plaintiff's late husband, Subbayya, jointly to Subbayya and herself. The claim was resisted upon various grounds, the first with which I propose to deal being the question of attestation of the deed. It purports to have been attested by five persons, two being signatories and three marksmen. If the plaintiff fails to establish two valid attestations amongst these, there are the further contentions that the writer of the document and the Sub-Registrar who registered it may be held to rank as attestors.

(2.) Of the two signatories one has not been traced and there is no evidence which would allow the Court to conclude that he validly attested the document. The other has been examined as P.W. 7 and although he himself has stated in evidence that he did not see the executant sign, the learned District Judge has accepted the evidence of P. Ws. 9 and 10 who state that he attested the document. This assertion was not made the subject of cross-examination and I think that it must carry with it the implication that it was a valid attestation within the terms of the definition added to Section 3, T. P. Act, by Act 27 of 1926.

(3.) We turn then to the attestations by the three persons unable to sign their own names. On the same evidence, that of P. Ws. 9 and 10, the learned District Judge has found that the attestation of one of them, P. W. 8, is valid, but this attestation has been attacked upon the general ground that as the law now stands a person who cannot sign his name is not qualified to attest a document. Before the law was amended as stated above, there can be no doubt that a marksman could be accepted as an attestor. For purposes of non-testamentary documents there was no definition of "attest" and Under Section 3(52), General Clauses Act, it was permissible to hold that sign" included "mark." I think however that the effect of Act 27 of 1926 in introducing a definition has altered the law in this respect. It is true that there is no case law directly in point but the definition is in precisely similar terms to that contained in the Succession Act as applying to the execution of wills. It is reasonable therefore to hold that, unless the contrary appears from the context in which each definition is to be found, words construed in a certain sense in the one must be construed in the same sense in the other. It has been held both in D. Fernandes V/s. R. Alves [1878] 3 Bom. 382 and in Nityagopal Sircar V/s. Nagendranath Mitter [1885] 11 Cal. 429 that the direction contained in Section 50(3) Succession Act 1865 (now Section 63(c) of the present Succession Act), as to the signature of witnesses attesting a will is not satisfied by the witnesses affixing their marks. In the latter case it is pointed out that the legislature, while speaking of the action of the testator, uses expressions shall sign or affix his mark" signature or mark". In speaking of the witnesses the section does not use any alternative expression but simply says "the witnesses must sign." That being the case," the learned Judges say: "we cannot help thinking that the legislature advisedly drew a distinction between the action of the testator and that of the witnesses as regards the mode of their respective signatures.