N.D.OJHA, J. - (1.) This special appeal has been filed against the judgment dated 27th May, 1983 (reported in AIR 1983 All 386), of a learned Single Judge of this Court dismissing testamentary Suit No. 14 of 1982 filed by the appellant on 24th Sept. 1982, for the grant of letters of administration with a copy of the annexed Will said to have been executed by Professor G. D. Karwal, husband of the appellant. It is admitted by the parties that Professor G. D. Karwal died on 24th Dec. 1969,- and left two sons - J. D. Karwal and R. D. Karwal and three daughters - Smt. Sheela Premprakash, Smt. Shakuntala Sahdev and Km. Janak Karwal from his first wife Smt Lajwanti and one daughter Smt. Prem Luthar from his second wife, Smt. Leela Karwal, the appellant. It is also admitted that his two wives were real sisters and it is after the death of Smt. Lajwanti in the year 1926 that Professor G. D. Karwal had married the appellant. So also stands admitted the fact that Km. Janak Karwal is unmarried and lived with her father in house No. 464 Mumfordganj, Allahabad, and has been living in a portion thereof even after the death of her father J. D. Karwal, respondent No.1, has stated in his deposition in this case that when Km. Janak Karwal was about six months or a year old she fell down and got crippled due to injuries in her legs and cannot move more than ten or twenty yards at a time with case.
(2.) According to the appellant, Professor G. D. Karwal had executed a Will whereby house No. 464 Mumfordganj, Allahabad, which was his self-acquired property, had been bequeathed to her. The Will filed along with the petition for the grant of letters of administration is, as was admitted before us even by counsel for the respondents, in the handwriting of Professor G. D. Karwal, namely, that it is a holograph one. It, however, does not bear any date. Evidence was led by the appellant that it had been executed on the Rakshabandhan day in the year 1969. It bears the signatures of P.C. Jain and his wife Mrs. Shanti Jain as attesting witnesses. The opening sentence of the Will reads : "I, Guru Datt Karwal, s/o Shri Devi Chand, retired Professor, University of Allahabad, Allahabad, r/o 464 Mumfordganj, Allahabad, (U.P.), declare this to be my Will." It is written on both the sides of a half-sheet of ordinary paper and does not bear any signature of Professor G. D. Karwal on any of its two sides. His name written in the first sentence extracted above is relied on as the signature of Professor G. D. Karwal. A caveat was filed by J. D. Karwal, respondent No. 1, and Janak Karwal, two of the children of Professor G.D. Karwal from his first wife Smt. Lajwanti. Their case was that their father had never executed any Will. They inter alia relied on the circumstances that Will filed by the appellant had not been produced in any proceedings including mutation proceedings till the year 1982 when it saw the light of the day for the first time after about 13 years of the death of Professor G. D. Karwal. Parties produced evidence in support of their respective cases and after considering the same the learned Single Judge by the judgment appealed against dismissed the suit filed by the appellant for the grant of letters of administration. He held : (1) Since no signature of the testator was to be found on the document relied on by the appellant as a will, it was only a draft will; (2) Even if for the sake of argument the words "I, Guru Datt Karwal" in the opening sentence of the document in question, are taken to be the signature of the testator it still remained a draft will as attestation of the will had not been established: (3) There are many circumstances emerging from the facts on the record which indicated that the case set up by the appellant that Professor G.D. Karwal had executed the will in question was not believable.
(3.) It has been urged by counsel for the appellant that the writing of his name by the testator in the opening sentence of the Will. Which was a holograph one, was his signature and fulfilled the requirement of the will being signed. In order to appreciate this argument it would be useful to refer to S.2(h) of the Succession Act (hereinafter referred to as the Act) which defines the term "Will" and S.63 thereof which prescribes the requirements of execution of a will. Sec.2(h) of the Act reads as follows:- "Will means the legal declaration of the intention of a testator with respect of his property which he desires to be carried into effect after his death". S. 63 of the Act reads as follows :- "63. Execution of unprivileged Wills. Every testator, not being a soldier employed in an expedition or 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 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, or has received from the testator a personal acknowledgment 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 but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary". The word "means" used in S. 2(h) of the Act connotes that the legislature by using the said word wants to "exhaust the significance of the term "defined" See Province of Bengal v. Hingul Kumari, AIR 1946 Cal 217 and Taj Mahal Hotel v. Commr. Income-tax, AIR 1969 Andh Pra 84. The words "the legal declaration" on the other hand used in S. 2(h) in our opinion mean the declaration made in accordance with law. The definition of the term "will" being exhaustive a document can consequently be construed as a will only if it contains a declaration made in accordance with law of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Since S. 63 of the Act prescribes the requirements of ihe execution of an un-privileged will such as the will set up in this case, letters of administration in respect of this will can be granted only if the declaration of his intention by Professor G. D. Karwal with respect to his property, which he desired to be carried into effect after his death, has been made in accordance with law. i.e., in conformity with the requirements of S. 63 of the Act. The submission aforesaid made by counsel for the appellant will thus have two aspects : (1) whether the writing of his name by the testator in a holograph will, while describing his identity, can be construed as a signature, and (2) if it can be so construed, does it fulfil the requirements of S. 2(h) and S. 63(a) and (b) of the Act. At this place we wish to emphasis that after reading Ss.2(h) and 63(a) and (b) together the legal position seems to be that the requirement of signing the will by the testator is for the purpose of authenticating the contents of the writing containing his declaration about the desposition of his property after his death. It is, therefore, apparent that the testator has to put his signature or mark as contemplated by S. 63(a) of the Act only after the contents of the writing containing the declaration have been scribed for it is not possible to authenticate a declaration before such declaration has been actually scribed and has thus come into existence. Something non-existent cannot obviously be authenticated. When a person writes his name, parentage and address in the opening part of a document to disclose his identity, it is a stage or point of time when the contents of the document are yet to be written and have not come into existence. How can such writing of name be treated as authentication of the contents of the document is yet another crucial question which will have to be considered.;