MAIKOO LAL Vs. SANTOO

JUDGEMENT

(1.) The question referred to this bench for decision is as follows: Is a will validly attested within the meaning of the provisions of Section 63 Succession Act, if either of the attesting witnesses has merely affixed his mark to the will?

(2.) The material portions of Section 63 Succession Act, are as follows: (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person In his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (C) The will shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator...each of the witnesses shall sign the will in the presence of testator....

(3.) Learned Counsel for the appellants con-tended that a will was validly attested if the witnesses simply affixed their mark to the document. In support of his argument he referred to Section 3 Sub-section (52) General Clauses Act. Sub s. 52 is as follows: "Sign," with its grammatical variations and cognate expressions, shall with reference to a person who is unable to write his name, include "mark," with its grammatical variations and cognate expressions.