Sibo Sundari Debi vs Hemangini Debi

Maclean, C.J.—The only question we have to decide on this appeal is whether the testator''s Will, dated so far back as the 9th of November 1887, his death occurring in 1893, was properly attested in compliance with the terms of sec. 50 of the Indian Succession Act. The learned Judge in the Court below was satisfied that the testator had executed the Will and he spoke of the witnesses for the Petitioner as respectable, and he had no doubt that the evidence they gave was substantially true, but in his opinion the Will was not properly attested. I have the misfortune to differ from him in that view. When we look a little closely at the evidence, there is not, I consider, sufficient to justify us in saying that the Will was not duly attested in compliance with the law.

Sec. 50 of the Indian Succession Act tells us what are the requisites for the due attestation of a Will and I do not think it is necessary to recapitulate them. Now what is the evidence? Doyamoy Chuckerbutty tells us that he signed the Will after the testator had personally acknowledged his signature to it. He says, in answer to the Court "I know Jadu''s (the testator''s) signature was on the Will before I signed, because I saw it. Jadu pointed it out to me saying he had signed the Will." We have then here the direct affirmative evidence of one attesting witness. But that is not sufficient: the Will must be attested by two witnesses at least. We have no direct affirmative evidence of a second attesting witness, for the writer Biprodas attested it before the testator had executed the Will, but we must consider whether upon the whole evidence we may not reasonably conclude that the Will was duly attested in accordance with law.

Besides the writer Biprodas Mukerji, there were five witnesses to the Will, of Whom, three are admittedly dead, one is the witness Doyamoy, referred to above, another is one Purna Chunder Roy, who was not called, and whose death, I understand, has not been proved, but whose signature on the document has been Verified. Biprodas tells us that he wrote out the Will at the desire of the testator who dictated from a draft, a fact which indicates that the testator desired to make a Will which is not challenged. Biprodas says that the testator drew out this draft and "after I had written out the Will I signed it and then the testator signed it."

I agree with the learned vakil for the Respondent that upon the authorities cited, the attestation of Biprodas is not a good attestation within the meaning of the section : but for all that his evidence is not unimportant for it is a fair inference from his evidence that when ho and the testator signed there were no other signatures on the document. Now the witness Doyamoy tells us that when he signed "several witnesses'' names were on the Will, but I do not recollect whose they were." The names of these witnesses then must have come on to the Will between the time Biprodas signed it, and the time Doyamoy signed it. The testator personally acknowledged to the latter his signature, and the inference is very strong that he would do and did the same to the witnesses who had signed before Doyamoy, as it is clear that the testator was fully alive to the importance of his Will being-attested. If he acknowledged his signature to Doyamoy the probabilities are strongly in favour of his having done the same to the other witnesses. This view is justified by what the widow says, and the Court below, as I have pointed out, believed the witnesses. She says that Doyamoy, Jogendra, Rakhal Palit and Chunder Mukerjee signed as witnesses and later on she says "Doyamoy signed as a witness in our lodgings. Rakhal and my son Jogendra signed" (that must be, signed as witnesses) "at our lodging, I do not know where the other witnesses signed. My husband was then in the lodging and was in the same room with those witnesses when they signed. I was also in the same room. None but the witnesses, my husband and I were in the same room."

If the testator asked them to witness the document, he would in every probability tell them what it was and acknowledge his signature to them.

Strict affirmative proof of due attestation is not absolutely necessary in cases of this class, and if the circumstances are such as to warrant the Court in reasonably concluding from those circumstances that the Will has been duly attested, probate may be granted. This is apparent from the case of Wright v. Sanderson L.R. 9 Pro Div. 149 (1884). The present case is well within the principle of that authority and in its circumstances is somewhat stronger. The appeal must be allowed, and letters of administration with a copy of the Will annexed must be granted to the Petitioner. We think that the Appellant must have the costs of this appeal, and we fix the hearing fee at three gold mohurs. We do not interfere with the order for costs in the lower Courts.

Banerjee, J.

I am of the same opinion.