MAHENDRA NATH SURUL Vs. NETAI CHARAN GHOSH

JUDGEMENT

(1.) This is an appeal from the judgmen of the District Judge of Hooghly refusing to grant letters of administration to the appellants with a copy of the will said to have been executed by one Madhab Chandra Mondal. The will purports to have been executed as long ago as 1871 and was registered before the Sub-Registrar of Hooghly on 17 July 1871. The executors named in the will and the attesting witnesses are, as may be expected, all dead. The applicants for the grant are the sons of Jadu Nath Surul, who was a son of the testator's sister and was one of the legatees under the will. The objectors are the sons of Kali Charan Ghosh, who was the son of the testator's daughter and was the residuary legatee. The District Judge has found that the will was not properly attested as required by Section 63, Succession Act, 1925 and has therefore refused the grant. Hence this appeal by the proponents of the will.

(2.) The only issue argued before us is whether there was proper attestation. Undoubtedly, Section 63 of the Act requires that an attesting witness to a will must sign the will in the presence of the testator and the context makes it clear that the mere affixing of a mark will not suffice for attestation. Such was also the law when the will in question was made (1871). The District Judge finds that in this case all the attesting witnesses were illiterate and merely affixed their marks, so that the attestation was on the face of it invalid.

(3.) We have examined the original will carefully and have come to the conclusion that there is no satisfactory basis for this finding. There are no fewer than six attesting witnesses; there is no direct evidence that any of them were illiterate and it would be rather strange if the testator, who had sufficient circumspection to register the will, selected for his attesting witnesses six persons all of whom were illiterate and unable to sign their own names. The will itself was written by one Behari Ghoshal who died about 30 years ago (see the evidence of p. W. 2); but it does not follow that he wrote the names of the witnesses also. Indeed, the formation of the Sri prefixed to the names of the first two witnesses is so different from that of the Sri prefixed to the names of the last four that they could not all have been written by the same man. Again, in at least four of the six names it is not possible to say whether the apparent "mark" is really a "mark" or merely a flourish at the end of the signature; certainly in the case of the first name, the same person that signed it also made what looks like a cross at the end without lifting the pen. It is also not without significance that in no case is there any such word as bakalam to indicate that the signature of the witness was by the pen of somebody else. In these circumstances, it may properly be said that the signatures purport to be in the handwriting of the witnesses themselves.