Mapparapu Subbaiah vs Nagulapati Lakshmamma

Amareswari, J.—These two Second Appeals arise out of a common judgment of the District Judge, Ongole in A.S. Nos. 91 and 119 of 1978.

Mupparaju Subbaiah is the Appellant in both the appeals. He was the Defendant in O.S. No. 52 of 1975, Sub-Court, Ongole filed by Nagulapati Lakshmamma for declaration of her title to the suit schedule properties and he is the Plaintiff in O.S. No. 186 of 1971 seeking declaration of title for the very same property. Both the suits were tried together and a common judgment was passed against which two appeals A.S. Nos. 91 and 119 of 1978 were preferred by Subbaiah. As the appeals were dismissed, Subbaiah has now come up in appeals.

The case of the Appellant is that the suit properties belong to one Velugondaiah. He died in 1946 leaving his wife Punnamma. They had four daughters. The Appellant is the son of the 2nd daughter. The first daughter Kondamma died and the last daughter Lakshmamma was married to Kondamma''s husband after Kondamma''s death. The Appellant''s case is that Velugondaiah died intestate. After his death Punnamma succeeded to his properties as a limited owner. Under the provisions of the Hindu Succession Act, 1956. It enlarged into an absolute estate and Punnamma executed a settlement deed in 1963 giving certain properties to her daughter Lakshmamma. She executed a sale deed in his favour conveying an extent of 4 acres, that she executed a settlement, deed in 1968 gifting some properties to him reserving a life interest, that on the same day, she executed another settlement deed in favour of her another grand son (son of the 3rd daughter Lakshmidevamma) giving certain properties to him and that she also executed a document in favour of the 4th daughter Lakshmamma giving a half share in the house property and the remaining half under Ex.A-10 to him reserving a life interest for herself.

On the other hand, the case of the first Defendant i.e., Lakshmamma, the last daughter of Punnamma is that her father Velugondaiah executed a will conveying the entries suit property in her favour. Punnamma had no right to the property, therefore, the settlement deeds executed by Punnamma are not binding on her. Punnamma, who filed the suit along with the Appellant died during the pendency of the suit and the Appellant who was already on record as the 2nd Plaintiff was recorded as the legal representative of Punnamma.

The Appellant contended that the will is neither true nor valid. It is not proved as none of the attestors had been examined. Both the Courts have found that the will is true and valid and binding on the Appellant.

In these Second Appeals, it is contended by Mr. N. Rajeswara Rao, the learned Counsel for the Plaintiff-Appellant that the will dt. 2-7-1945 is not valid since it is not proved. None of the attestors have been examined, as such the document is inadmissible in evidence. Ex.B-26 is the will dated 2.7.1945 executed by Velugondaiah. He affixed his thumb impression. There are five witnesses. Two of them namely, Kulava Narasaiah and Singaraju Venkata Subbaiah have put their signatures. Singaraju Venkata Subbaiah died. Kulava Nasaraiah is alive, but he has not been examined. The other three attestors are Muvvaraju Kotaiah''s son Musalaiah, Madhumanchi Naraiah''s son Kondaiah and Madhumanchi Adenna. All the three are described as ''Nisanis'' None of them have affixed their thumb impression nor did they put any mark. Out of the three, Madhumanchi Kondaiah, son of Naraayya was examined as D.W.2. The scribe is one Ravuri Venkata Subbaiah. He has not been examined. The evidence of D.W.2 that he was one of the persons, who attested the document and who present at the time of execution of the will. Hence, the only person examined in connection with the will is Kondaiah,who was described as Nisani, but he did not put any mark or signature on the will.

The contention of Mr. N. Rajeswara Rao, the learned Counsel for the Appellant is that D. W.2 cannot be said to be an attestor as he has neither signed nor affixed his thumb impression on the document and u/s 63 of the Indian Succession Act, a will has to be attested by at least two persons, and u/s 68 of the Evidence Act at least one of the attestors should be examined. In this connection, it is necessary to refer to Section 63 of the Indian Succession Act which relates to execution of wills. Section 63(a) is as follows:

Every testator, not being a soldier employed in an expedition or fl engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person on his presence and by his direction.

It is seen from this Section that there are three modes in which a will can be executed:

(1) by putting the signature;

(2) by affixing the testator''s mark to the will, or

(3) by getting it signed by another person or by the signature of some other person in the presence and at the direction of the testator.

These are the three methods in which a testator can execute a will. Then we come to Sub-section (b) which say that the signature or mark of a testator or the signature of the person singing for him shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. This Sub-clause speaks of the method in which the signature or the mark as the case may be, be placed. Now Clause (c) which is relevant for our purpose is as follows:

(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, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, (underlining is mine) but it shall not be necessary that more than one witness be present at the same time, and no particular from of attestation shall be necessary.

This Sub-section relates to witnesses. It says that it shall be attested by two or more witnesses, each of whom has seen the testator signed or affix his mark or some other person signing for the testator under his direction. It further says that the witnesses shall sign the will in the presence of the testator. Thus a distinction is made between a testator and an attestor while in the case of a thumb mark or signature of another person in the presence and at the direction of the testator, in the case of a attestor, the Section requires that the witnesses shall sign the will. Under the General Clauses Act of 1897, the expression "sign" is defined. Section 3 Sub-section (56) defines "sign" as follows:

3(56):

"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.

Section 63(c) read with the General Clauses Act marks it clear that the witnesses should either put their signature of affix their mark. There is no other method in which a will can be attested. Section 63(c) prescribes the method and manner in which a testator can sign. The words "shall be signed by some other person in his presence and by his direction which occur in Section 63(a) are significantly absent in Sub-clause (c). It is therefore clear that the Legislature maintained a distinction in the case of a testator and an attestor or a witness. The reasons can be easily understood. A testator may not be in a position to sign or even put his mark. Usually wills are executed when a person is not in a normal state of health and every often on the death bed or a person may be incapaciated due to several factors to put his signature or even a mark. To cover such contingencies a third method is provided namely, somebody else can sign for him subject to the condition that it should be signed in his presence at his direction. In the case of attestors such a situation does not arise. It is not necessary to call a sick person or a person, who is not in a position to put even a mark to attest the document. The Legislature had made a clear distinction in the case of a testator and an atestator. A person can be said to have attested the document only when he puts his signature or mark on the document. In the absence of these two it cannot be said that the will had been attested simply because his name figures as a witness.

Now we will refer to the decisions cited at the Bar.

In Rajani Mandal Vs. Digindra Mohan Biswas, it was held that an endorsement of payment of interest made by the scribe on behalf of the debtor who is illiterate is an acknowledgement of payment of interest signed by the debtor within the meaning of Section 20 of the Bengal Endorsement of payment of interest Act. In this case, it was established that there was customary practice among illiterate persons to sign documents by touching the pen and authorising another person to sign by writing their name for them in their presence. This case has no application to the facts of the present case. The Bengal case was decided on a customary practice and the practice was to sign the name of another person for the bebtor. It is not a case where the name of the attestor itself is written by some one else in a will.

In Sasi Bushan Pal v. Chandra Peshkar ILR 1906 Cal.861, the question turned upon Section 59 of the Transfer of property Act where a mortgage was attested by some persons who allowed the writer of the deed to write their name. The case turned upon Section 59 of the Transfer of the Property Act. The said Section does not insist upon the signature of the witnesses. It merely says that attested by atleast 2 witnesses. Whereas in the case of wills which is governed by Section 64 it is provided that the witnesses would signed on the document which includes putting their mark as per the General Clauses Act.

The next decision cited by the learned Counsel is Kachi Kadambi Krishnamachariar Vs. T. Jagannadha Nayudu and Others, the question was whether an attestor can put a thumb mark. It was held that the words "sign the instrument" in the definition of "attested" in Section 3 of the Transfer of Property Act is governed by the definition of "sign" in the General Clauses Act and therefore, the words "sign" in Section 3 of the Transfer of Property Act includes also a mark by the attestor. In this case, the witness has put a mark in the document. It was contended that a witness must put his signature and cannot affix a mark. That contention was negatived on the ground that the General Clauses Act would apply, and it is enough if an attestor puts a mark. This is a case of gift. This decision is not an authority for the proposition that even a mark need not be put by an attestor. While considering this question, the Madras High Court observed that whether they signed the document themselves or affix their mark to it the mere presence of their names in the document will be sufficient prima facie evidence to show who the attestors are. The essential part of the definition is that the attestor should be present and be assured by what they themselves would see and by what the executant acknowledges before them, that the executant has actually executed the document. But the Madras High Court has not said that even a mark need not be put by an attestor. On the other-hand, they referred to signature as well as affixing the mark.

However, the learned Counsel Mr. M. Ramaiah relied upon we decisions of the Patna High Court in Dahu and Another Vs. Jamadar Rai and Others, and Bishwanath Raut and Others Vs. Babu Ram Ratan Singh and Others, . In the first of these decisions, it was held that where one of the attesting witness signed for himself and also on behalf of other at his instance and in his presence, the signature would be good signature though no mark is affixed by the other witness. The mortgage was held to be valid as duly attested. The Patna High Court relied upon the observations of the Madras High Court in Nagamma v. Venkatarmayya Supras referred to above. But the observations of the Madras High Court are made in the context of the question that arose there namely, whether putting of the mark is sufficient or whether an attestor should necessarily put his signature. The decision was followed in Bishwanath v. Babu Ram Supra. We are unable to agree with the view taken by the Patna High Court. Both the cases are under the Transfer of Property Act.

The only other decision to which reference has to be made is Commissioner of Agricultural Income Tax, Bengal Vs. Sri Keshab Chandra Mandal, This is a case where a declaration of an illiterate person was signed by his son. The question was whether it is valid. The Supreme Court held that the omission of a definition of the expression "signed" so as to include the signature of an agent the presence of the provisions permitting only certain specified act other than signing to be done by or through an uthorised agent are significant and indicate that the intention of the Legislature is not to permit signature by an agent. The Court observed that when signature by an agent is permissible the writing of the name of the principal by the agent is recorded as the signature of the principal himself. But this result follows only when it is permissible for the agent to sign the name of the principal. If on a consideration of a statute signature by an agent is not found permissible then the writing of the name of the principal by the agent however, clearly he may have been authorised by the principal cannot possible regarded as the signature of the principal for the purpose of that statute. If a statute requires personal signature of a person which includes a mark, the signature or the mark must be that of the man himself. There must be physical contact between that person and the signature or mark put on the document. These observations squarely to the facts of the present case. The provisions of the Indian Succession Act namely, Section 63(a) and (c) clearly indicate that there is an implied prohibition in the case of an attestor to permit an agent to write his name on the document while in the case of the testator it is not so.

We accordingly hold that the will Ex.B-26 is not properly proved. D.W.2 cannotbe said to be an attestor. Section 68 of the Indian Succession Act requires that at least one of the attestors should be examined. We accordingly hold that Ex.B-26 is invalid.

It is no doubt true that both the Courts have accepted the evidence of D.W.2 who said that he attested the will. Beyond that D.W. 2 does not say anything. He does not mentioned the person, who has written his name. He stated in the cross-examination that nobody asked him to put his thumb impression and he was asked by one Karanam Venkatappaiah to touch the pen. He does not even say who wrote his name. Karanam Venkatappaiah is not even the scribe. There is no evidence that the scribe had written his name as observed by the Courts below. There is also no evidence that his name was written at his instance or under his direction or in his presence. The observation of the Courts below that his name was written by the scribe at his instance is an error apparent on the face of the record.

For the reasons stated above, we allow the Second Appeals set aside the judgment and decree of the Courts below and decree the suit O.S. No. 186 of 1971 and dismiss O.S. No. 52 of 1975. The parties to bear their own costs throughout.

After the judgment is delivered Mr. M. Ramaiah, made an oral application for granting leave to appeal to the Supreme Court. We are of the view that the case involves substantial question of law of general importance, which in our opinion needs to be decided by the Supreme Court.

There shall be suspension of the judgment for eight weeks to enable the party to obtain appropriate orders from the Supreme Court.

Per Upendralal Waghray J.(concurring)

I agree with the conclusion of Smt.Amareswari, J., but would like to add a few words in view of the importance of the question arising in these Second Appeals and there being no reported authority directly on the point.

Section 63 of the Indian Succession Act of 1925 lays down the requirements for the execution of a will. Clauses (a) and (b) deal with the matters required to be done by the testator, while Clause (c) requires the will to be attested by two or more witnesses in the manner mentioned in it. Section 3 of the Transfer of Property Act defines ''attestation'' of a document in similar terms as there in Section 63(c) of the Indian Succession Act. Apart from the will, there are other instruments which are also requested by law to be attested. According to Section 68 of the Evidence Act, a document, which is required by law to be attested shall not be used as evidence, until one attesting witness has been called for the purpose of proving its execution (unless it is established that tone is alive). In this case, the alleged will, Ex.B-26 dated 2.7.1945 shows five persons as attestors, out of whom, two were said to be dead at the time of trial, but three were alive and available. The propounder examined only D.W.2 (an illiterate person) as the attestor for the proof of the will. His thumb impression or mark is not found on the will, but at the place of attestation his name is written (by the scribe) in Telugu with an endorsement ''Nisani''. According to the courts below, D.W.2 had touched the pen with which his name was written, that is he had authorised the person holding the pen to sign for him as an attestor. The question is whether a witness to a will could authorise anyone else to sign or put a mark on his behalf to be an attestor According to Section 3(56) of the General Clauses Act, ''sign'' with reference to a person who is unable to sign his name shall include his mark. But, Section 63(c) of the Succession Act an attestor is to sign the document in the manner mentioned in it. By applying the definition of ''sign'' in the General Clauses Act, putting of a mark by a person not able to sign is held as sufficient for the purpose of attestation. Vide Nagamma v. Venkatramayya AIR 1935 Mad 178 (2) and Maikoo Lal and Another Vs. Santoo and Others, , Some other High Courts have held that in view of the special requirement in Section 63(c) of the Indian Succession Act, the attestation could be only by signing that is only confined to literate persons excluding the illiterate who cannot sign only put the mark. We accept and follow the Madras High Court decision on this aspect i.e., an attestor may sign or put his mark.

The controversy is whether an attesting witness to a Will can authorise anyone else to sign or put the mark on his behalf? As observed by the Supreme Court, the common law principle that a person, who is an executant of document may, in certain circumstances, direct or authorise some one else in his presence to sign or put a mark on his behalf but this will be excluded by a statutory provision requiring the executant to subscribe his signature or mark-vid Comr. Agril. Commissioner of Agricultural Income Tax, Bengal Vs. Sri Keshab Chandra Mandal, , Section 63(b) of the India succession Act, however, specifically provide for the testator to sign or put a mark himself or to get it done in his presence and at his direction by some one else. But Section 63(c) does not contain any such provision for attestors. No common law principle or a customary law enabling an attestor to authorise some else to sign on his behalf is shown. Assuming there was any such practice and also the fact that a large number of our population is illiterate, it is not prudent to hold it to be legal in the face of the statutory provisions regarding execution of Wills in Section 63. Nothing presents an illiterate person from putting his own mark as an attesting witness while in the case of a testator or executant of a document there may be situations where he himself may not be in a physical condition to sign or put a mark enable an illiterate person to be an attestor provided he puts the mark himself. This avoids diluting the statutory requirement of attestation and proof of execution of a Will.

It is stated across the Bar that there is no direct reported case on the question whether an attestor of a will could authorise another to sign on his behalf. Some decisions of regarding illiterate attestors of other documents, which are required by law to be attested attestors of other documents, which are required by law to be attested have taken the view that an attestor may authorise another to sign on his behalf. These are Commissioner of Agricultural Income Tax, Bengal Vs. Sri Keshab Chandra Mandal, . Bishwanath Raut and Others Vs. Babu Ram Ratan Singh and Others, , Ram Charan Vs. Bhairon and Others , and Sasi Bhushan Pal v. Chandra Peshkar ILR 33 cal. 861. In all these cases, reference is made to the definition of ''Sign'' in the General Clauses Act and the circumstance that an illiterate person could be an attesting witness and, thereafter, the principle applicable to an executant of a document has been applied to the attestors without considering the basis difference among the two. It is not possible to agree with the application of the cases or executant of a document to an attestor, or the need of an illiterate person as an attestor, for authorising someone else to put the mark on his behalf particularly in the case of Wills for the reasons given above. The very object of Section 63(c) will be diluted, if not defeated, by permitting a practice of authorising an attestor to have his signature or mark being put by another person. It cannot be said that an attestor who can put his signature or mark cannot be found at the time of execution of a Will. Therefore, unless a witness puts his own signature or mark as an attestor to a Will, there is no valid attestation and he cannot be treated as an attesting witness. Accordingly DW 2 cannot be treated as an attesting witness. Accordingly DW-2 cannot be treated as an attesting witness and as no other attestor has been examined the Will which is propounded is not proved as required by Section 63 of the Evidence Act.