Bulaki Mahton vs Mt. Dulia and Others

Varma, J.—The learned Judicial Commissioner of Chota Nagpur by his order, dated 16th September 1939, has dismissed the application for probate of a will, pre-ferred by one Bulaki Mahto (Sunri). The will is said to have been executed jointly by Lalohand Sunri and his brother''s widow Mt. Bhukhli on 21st May 1917. The application for probate was made on 25th April 1938, after the testator''s death which took place in 1936. Both Lalchand Sunri and Mt. Bhukhli were illiterate.

The Court below has found--a finding which is in favour of the appellant, that the executants intended to execute the will and that they were in a position to realize what they were doing. But probate of the will has been refused by the learned Judicial Commissioner on the ground that the will was not properly attested as required by law. I have looked into the will and it appears that one Wazir Pande signed on behalf of the two executants against their thumb impressions. One Kishun Sahai sign-ed the will as a scribe and merely says that he read over the contents of the document to the executants. Kishun Sahai does not say under his signature that he attested the signatures of the executants. The signature of Lato Hajam also appears on the will. Lato Hajam was, at the time of the proceedings in the Court below, dead and therefore could not be examined. But his signature on the will appears in a peculiar manner. The signature is from the pen of Kishun Sahai and there is a mark just below it. There is no evidence that this mark below Lato''s name written by Kishun Sahai was made by Lato Hajam himself. The only other signature is that of Wazir Pande, but the Court below has not accepted this as an act of attestation, because he was the person who also signed for the executants.

The learned Judicial Commissioner has relied upon the decision in In the matter of Hemlota Debee (83) 9 Cal. 226, Nitye Gopal Sircar v. Nagendra Nath (85) 11 Cal. 429 and Fernandez v. Alves (79) 3 Bom. 382. The evidence, therefore, does not show that the signatures on the will were properly attested as required by Section 63, Succession Act.

Mr. S.N. Banerji on behalf of the appellant argues with his usual ability that even if it be held that the required number of two witnesses have not been proved to have attested the signatures of the executants, the endorsement by the Registrar before whom the document was registered should be taken to amount to attestation.

In support of his argument, Mr. S.N. Banerji relies upon the decision in Sarada Prasad Tej Vs. Triguna Charan Ray, and also refers to the decision in Theresa Vs. Francis J. Misquita, . But it is not really a question of law that stands in the way of Mr. Banerji''s client (the appellant), it is really a question of fact. Even assuming that the Registrar could be taken as an attesting witness, the evidence on the record does not show that there was any other witness who could be said to have attested the will. Wazir Pande no doubt speaks to what happened at the time of the execution of the will and also at the time of registration thereof, but his evidence falls short of the required proof that any witness attested the will at the time of its execution. In these circumstances there is no other alternative but to dismiss the appeal. The appeal is dismissed, but there will be no order as to costs of this Court.

Manohar Lall J.

I agree.